VOLUME 127
FEBRUARY 2014
NUMBER 4
© 2014 by The Harvard Law Review Association
ARTICLE
PARTISAN FEDERALISM
Jessica Bulman-Pozen
CONTENTS
INTRODUCTION .......................................................................................................................... 1078
I.
STATES AS SITES OF PARTISAN OPPOSITION .............................................................. 1082
A. Parties as a Safeguard of Federalism ........................................................................... 1083
1. Parties.......................................................................................................................... 1083
2. Federalism .................................................................................................................. 1089
3. Origins......................................................................................................................... 1093
B. State Opposition to the Federal Government .............................................................. 1096
1. Litigation: State Sovereignty .................................................................................... 1097
2. Legislation: Institutional Isomorphism ................................................................... 1100
3. Administration: Uncooperative Federalism ........................................................... 1105
II.
PARTISAN IDENTIFICATION WITH STATES ................................................................. 1108
A. Problems of Identity and Loyalty in American Federalism ...................................... 1109
B. Partisanship as Identity ................................................................................................. 1113
C. Identifying with States ................................................................................................... 1116
III. HORIZONTAL NATIONALISM .......................................................................................... 1122
A. Federalism as a Safeguard of Parties ........................................................................... 1123
1. Keeping the Losing Side Alive ................................................................................ 1123
2. States as Laboratories of Partisan Politics ............................................................. 1124
B. Identifying with Other States........................................................................................ 1130
IV. STATE ELECTIONS AND POLITICAL COMMUNITY .................................................... 1135
A. Bluman v. FEC: Political Engagement Across State Lines ...................................... 1135
B. McBurney v. Young: State Freedom of Information Acts ......................................... 1142
CONCLUSION ............................................................................................................................... 1145
1077
PARTISAN FEDERALISM
Jessica Bulman-Pozen∗
Among the questions that vex the federalism literature are why states check the federal
government and whether Americans identify with the states as well as the nation. This
Article argues that partisanship supplies the core of an answer to both questions.
Competition between today’s ideologically coherent, polarized parties leads state actors
to make demands for autonomy, to enact laws rejected by the federal government, and to
fight federal programs from within. States thus check the federal government by
channeling partisan conflict through federalism’s institutional framework. Partisanship
also recasts the longstanding debate about whether Americans identify with the states.
Democratic and Republican, not state and national, are today’s political identities, but
the state and federal governments are sites of partisan affiliation. As these governments
advance distinct partisan positions, individuals identify with them in shifting, variable
ways; Americans are particularly likely to identify with states when they are controlled
by the party out of power in Washington.
States also serve as laboratories of national partisan politics by facilitating competition
within each political party. In so doing, they participate in national political contests
without forfeiting the particularity and pluralism we associate with the local. By
instantiating different partisan positions, moreover, states generate a federalist variant of
surrogate representation: individuals across the country may affiliate with states they do
not inhabit based on their partisan commitments. Attending to the intersection of
partisanship and federalism has implications for a number of doctrinal controversies,
such as campaign finance across state lines and access to state public records. The
analysis here suggests that porous state borders may enhance states’ ability to challenge
the federal government and to serve as sites of political identification.
INTRODUCTION
W
e cannot fully understand our federal system today without
taking account of partisan competition. Consider a few recent
snapshots:
In the spring of 2010, Republican officials in twenty-seven states
filed lawsuits arguing that the Patient Protection and Affordable Care
Act unconstitutionally intruded on state sovereignty. The Act was the
signature achievement of a Democratic President and Congress; not a
single Republican member of Congress voted for the law. And no
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
∗
Associate Professor, Columbia Law School. For helpful and generous comments, I am
grateful to David Barron, Richard Briffault, Josh Chafetz, Ariela Dubler, Joseph Fishkin, James
Gardner, Heather Gerken, Abbe Gluck, Pratheepan Gulasekaram, Jeremy Kessler, James
Liebman, Gillian Metzger, Henry Monaghan, Trevor Morrison, David Pozen, David Schleicher,
Neil Siegel, David Super, the editors of the Harvard Law Review, and participants in workshops
at Columbia Law School, Duke Law School, and the University of Minnesota Law School. I also
thank Joseph Dudek, Alexandra Golden, and Corinna Provey for excellent research assistance
and the William S. Friedman Faculty Research Fund for support.
1078
2014]
PARTISAN FEDERALISM
1079
Democratic state officials joined the federalism challenge. Instead,
they defended the Act as a valid exercise of national authority.1
Several years earlier, Democratic officials in eight states passed
laws to encourage and fund embryonic stem cell research in response
to a Republican President’s executive directive prohibiting the use of
federal funds for such research. When a Democratic President assumed office, he brought federal policy in line with these state laws.2
Throughout 2011 and 2012, the Wisconsin gubernatorial recall election attracted financial contributions from across the country. Individuals nationwide saw the race as a contest between a burgeoning
Republican “right to work” movement and a labor-friendly Democratic
agenda. Both the incumbent Republican Governor and his Democratic challenger received contributions from all fifty states, with out-ofstate contributions rivaling in-state contributions.3
In each episode, states functioned as important sites of partisan
conflict, and partisanship, in turn, shaped state governance. Republican state officials challenged decisions by Democratic federal officials.
Democratic state officials challenged decisions by Republican federal
officials. And individuals from Alaska to Florida, Maine to Hawaii,
saw the states as fora for national partisan fights.
Without an appreciation of partisanship’s influence, dynamics considered fundamental to our federal system are obscure. Take, for example, the widely assumed role of states in checking the federal
government. There is nothing essential about the nature of state governments that leads them to oppose their national counterpart, and
courts and commentators are more likely to tout state contestation
than to explain why it occurs.4 Yet we do see substantial opposition.
States argue that the federal government is exceeding its proper
bounds and infringing state autonomy. They pass laws to prod the
federal government into action or to resist its policy choices. And they
push back against federal directives in carrying out federal programs.
In recent years, states have challenged federal law regulating marriage
as an intrusion on state sovereignty, adopted their own versions of
failed federal legislation regarding greenhouse gas emissions and the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
1
2
3
4
See infra notes 73–79 and accompanying text.
See infra notes 98–107 and accompanying text.
See infra note 258 and accompanying text.
See Heather K. Gerken, The Supreme Court, 2009 Term — Foreword: Federalism All the
Way Down, 124 HARV. L. REV. 4, 48 (2010) (“For most theories of federalism to have any bite,
different majorities must control at the state and national level. But surprisingly little is written
about the precise source of variation.” (footnote omitted)); Daryl J. Levinson, Empire-Building
Government in Constitutional Law, 118 HARV. L. REV. 915, 944 (2005) (arguing that courts and
many commentators wrongly “personify[] the state and federal governments as self-interested
political actors with empire-building ambitions, pitted against each other in a competition for
power”).
1080
HARVARD LAW REVIEW
[Vol. 127:1077
funding of Planned Parenthood, administered federal immigration law
in a decidedly uncooperative manner, and more.
A key, yet largely neglected, reason for these state challenges is
partisanship. Put in only slightly caricatured terms, Republican-led
states challenge the federal government when it is controlled by Democrats, while Democratic-led states challenge the federal government
when it is controlled by Republicans. States oppose federal policy because they are governed by individuals who affiliate with a different
political party than do those in charge at the national level, not because they are states as such. And the fact that there are fifty states
and many actors composing the federal and state governments is critical. Because it is party politics that draws the battle lines, some state
and federal actors line up on the side of the federal government, while
other state and federal actors line up on the side of the states. Federalism provides the institutional terrain for disputes that are substantive
in nature.
Partisanship also sheds new light on an old debate in the federalism
literature: whether Americans have state as well as national political
identities. Scholars have long argued about whether the states have
unique cultures that command citizen loyalty,5 but identification with
states may be more contingent than this debate suggests. As recent
work in political theory and psychology has shown, partisanship is an
important aspect of personal identity and source of community.6
Democratic and Republican, not state and national, are today’s political identities. But the state and federal governments are important
sites of partisan affiliation. As these governments advance competing
partisan positions, individuals identify with them in shifting, variable
ways. Americans are especially likely to feel loyal to the states when
they are controlled by the party out of power in Washington, as some
number of them always will be.
Partisan federalism, as this Article defines it, involves political actors’ use of state and federal governments in ways that articulate,
stage, and amplify competition between the political parties, and the
affective individual processes of state and national identification that
accompany this dynamic. Attending to partisanship reveals that our
contemporary federal system generates a check on the federal government and fosters divided citizen loyalties, as courts and scholars fre-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
5 Compare, e.g., DANIEL J. ELAZAR, AMERICAN FEDERALISM 150–73 (3d ed. 1984) (arguing they do), with, e.g., MALCOLM M. FEELEY & EDWARD RUBIN, FEDERALISM 118–20 (2008)
(insisting they do not).
6 See, e.g., DONALD GREEN ET AL., PARTISAN HEARTS AND MINDS (2002); NANCY L.
ROSENBLUM, ON THE SIDE OF THE ANGELS (2008).
2014]
PARTISAN FEDERALISM
1081
quently assume. But it does so for an unexplored reason — because it
provides durable and robust scaffolding for partisan conflict.7
Part I examines how party politics drives states to contest federal
government action. Existing scholarship describes how the parties
breed cooperation among state and national politicians,8 but the rise of
ideologically coherent, polarized parties means that partisanship matters more for the competition it generates than for the cooperation it
inspires. States make demands for autonomy, they enact shadow policies rejected by the federal government, they fight federal programs
from within — and they do all of this because of partisan commitments. They thus check the federal government by channeling partisan conflict through federalism’s institutional framework.
Turning from politicians to their constituents, Part II argues that
partisanship provides an ingredient many scholars find missing in contemporary American federalism: a reason for individuals to identify
with and feel loyal to states rather than the nation alone. People may
identify with the states not because they represent something essentially different from the nation, but rather because they represent competing Democratic and Republican visions of the national will. Focusing
on partisanship suggests that state-based identification may be fluid
and partial — and, perhaps paradoxically, a means of expressing national identity — but nonetheless an important buttress of American
federalism.
Part III considers the horizontal dimensions of partisan federal contestation and identification. Our political parties are themselves federated entities, and states flesh out both interpartisan and intrapartisan
competition in diverse ways. In so doing, they serve as “laboratories”
of national partisan politics; they participate in national political contests without forfeiting the particularity and pluralism we associate
with the local. By advancing different partisan positions, moreover,
the states become distinct from the federal government and from each
other in ways likely to resonate with individuals throughout the nation. Insofar as state identification is driven by partisanship, individu-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
7 This Article argues that partisanship is critical to understanding contemporary American
federalism, but to be clear, the claim is not that partisanship is the only basis for state action, state
identity, or the like. No single claim about federalism can have such all-embracing descriptive
power. Moreover, although the Article is principally descriptive, it offers a sympathetic rendering
of partisan federalism. One could, however, accept this descriptive account and conclude that
partisan federalism is a pernicious phenomenon. Consideration of the many tradeoffs that inform
a complete normative assessment must await future work.
8 See, e.g., MORTON GRODZINS, THE AMERICAN SYSTEM (Daniel J. Elazar ed., Transaction Books 1984) (1966); WILLIAM H. RIKER, FEDERALISM (1964); Larry D. Kramer, Putting
the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000).
1082
HARVARD LAW REVIEW
[Vol. 127:1077
als may therefore affiliate with states they do not inhabit, realizing a
federalist form of surrogate representation.9
Part IV takes up a few doctrinal questions prompted by the notion
of cross-state affiliation. While courts have largely held, on First
Amendment grounds, that states may not bar nonresidents from making campaign contributions and expenditures in connection with state
elections, the legitimacy of the practice is a federalism question as well.
Perhaps counterintuitively, this Part suggests that porous state borders
may facilitate states’ ability to serve as counterweights to the federal
government and as sites of political identification. As it rationalizes
aspects of campaign finance jurisprudence, however, this understanding calls into question the Supreme Court’s recent decision upholding
state limits on nonresident access to public records.10
The framework of partisan federalism highlights the mutual entailment of nationalism and federalism in the early twenty-first century. States participate in controversies that are national in scope and do
so on behalf of the nation’s people at large. Yet they are not simply
agents of the federal government or administrative units of a homogenous polity. As states advance national partisan positions different
from those advanced by the federal government and one another, they
challenge and disrupt national policy and give rise to meaningful political identification. A focus on partisan federalism underscores the centrality of states to our political order even as it destabilizes conceptions
of states as self-contained communities.
I. STATES AS SITES OF PARTISAN OPPOSITION
Courts and scholars frequently celebrate state-federal contestation,
but they rarely focus on why it occurs. Party politics offers a powerful
explanation. States controlled by one party challenge the federal
government when it is controlled by the other party.11 They argue
that it is exceeding its authority and trampling on state prerogatives.
They enact their own legislation to dissent from federal policy and
chart a different course. And they administer federal laws in ways not
intended or welcomed by the federal administration. While all of these
actions depend on federalism’s structure, they are motivated by partisan conflict.
Today’s partisan federalism reflects the convergence of two trends.
First, our two major political parties, which compete at both the state
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
9 See Jane Mansbridge, Rethinking Representation, 97 AM. POL. SCI. REV. 515, 522 (2003)
(defining a surrogate representative as one “with whom one has no electoral relationship — that
is, a representative in another district”).
10 McBurney v. Young, 133 S. Ct. 1709 (2013).
11 On some complications related to the notion of party control, see infra pp. 1096–97.
2014]
PARTISAN FEDERALISM
1083
and national levels, have grown ideologically cohesive and polarized.
Second, the states and the federal government increasingly regulate in
overlapping areas rather than separate spheres. Independently, each of
these developments has been much discussed;12 their interaction is
what I consider here. Section I.A critiques how leading federalism
scholarship conceptualizes political parties and state-federal competition. Section I.B illustrates how states serve as critical fora for partisan conflict insofar as they occupy the same regulatory terrain as the
federal government while being governed by representatives of polarized political parties.
A. Parties as a Safeguard of Federalism
To understand what partisan federalism is, we first have to see
what it is not. Partisan federalism represents a departure from both
the federalism literature’s description of American political parties and
its depiction of state challenges to the federal government. The leading account of the relationship between federalism and partisan politics casts the parties as noncentralized and nonprogrammatic, and it
suggests that partisanship is a basis for state-federal cooperation, not
competition. Meanwhile, distinct strands of federalism doctrine and
scholarship understand state opposition to the federal government to
be a core value of federalism, but they tend not to question why it occurs. Today’s ideologically cohesive, polarized parties help to explain
state challenges to the federal government while also expanding our
conception of state opposition. Partisan federalism’s challenges follow
from state-federal overlap and integration, and they involve state and
federal actors alike turning to state governments to articulate and
stage partisan competition.
1. Parties. — If you asked informed Americans what features are
most notable about today’s two-party system, you would likely be told
that the parties are ideologically cohesive and polarized. Yet legal
scholarship’s leading account assimilating federalism and party poli-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
12 On today’s cohesive, polarized parties, see, for example, ALAN I. ABRAMOWITZ, THE
DISAPPEARING CENTER (2010); JOHN H. ALDRICH, WHY PARTIES? A SECOND LOOK 163–
323 (2011); Geoffrey C. Layman et al., Party Polarization in American Politics: Characteristics,
Causes, and Consequences, 9 ANN. REV. POL. SCI. 83 (2006); and Richard H. Pildes, Why the
Center Does Not Hold: The Causes of Hyperpolarized Democracy in America, 99 CALIF. L. REV.
273 (2011). On the rise of overlapping spheres of state and federal authority, see, for example,
ELAZAR, supra note 5; GRODZINS, supra note 8; ERIN RYAN, FEDERALISM AND THE TUG OF
WAR WITHIN (2011); ROBERT A. SCHAPIRO, POLYPHONIC FEDERALISM (2009); and Roderick
M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process,
82 N.Y.U. L. REV. 1 (2007).
1084
HARVARD LAW REVIEW
[Vol. 127:1077
tics, Larry Kramer’s revitalization of process federalism, describes the
parties in almost opposite terms.13
Instead of focusing on the composition of the federal government,14
Kramer locates his political safeguards in unplanned structures that
link the fortunes of state and federal officials, especially the political
parties. Drawing on the work of political scientists including Morton
Grodzins and William Riker, who emphasized the decentralized and
nonideological character of American parties,15 Kramer casts the
weakness of the parties as key to his account in two respects. First, he
maintains, the parties are not programmatic. Their primary purpose is
to get candidates elected, not to advance an agenda. As a result, party
platforms are not taken seriously, parties switch ideological positions
with ease, and there is substantial intraparty disagreement on fundamental issues.16 Second, according to Kramer, American parties are
noncentralized — they are “confederations of national, state, and local
cadres whose most conspicuous features are flabby organization and
slack discipline.”17 Ultimately, for Kramer, parties’ nonprogrammatic
and noncentralized nature yields a political climate in which federal
officials depend on their state copartisans to get, and stay, elected, and
this dependency leads federal lawmakers to respect state autonomy.18
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
13 See Kramer, supra note 8; Larry Kramer, Understanding Federalism, 47 VAND. L. REV.
1485 (1994).
14 See Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the
Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954); see also
JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980).
15 See GRODZINS, supra note 8, at 254 (“[T]he parties are responsible for both the existence
and form of the considerable measure of decentralization that exists in the United States.”);
RIKER, supra note 8, at 91–96 (describing decentralization as the key feature of American political parties).
16 Kramer, supra note 13, at 1524–26.
17 Kramer, supra note 8, at 279.
18 E.g., id. at 282. As others have noted, there is a missing link in Kramer’s account: even if
one accepts his premise that federal lawmakers will defer to state politicians’ interests, it is not
clear why these interests will include respect for the autonomy of state government. See, e.g.,
Steven G. Calabresi, “A Government of Limited and Enumerated Powers”: In Defense of United
States v. Lopez, 94 MICH. L. REV. 752, 798 (1995). Daryl Levinson has suggested that this critique is misplaced because Kramer is “agnostic about the interests of state officials,” believing that
federalism is successful as long as “state representatives can force the national government to take
account of the interests of their constituents, whatever those interests might be.” Levinson, supra
note 4, at 940 n.89. While Levinson’s argument is in keeping with Kramer’s general sensitivity to
the contingency of state-federal relations, see, e.g., Kramer, supra note 8, at 292–93, it does not
capture Kramer’s argument about political parties. Indeed, Kramer takes Herbert Wechsler to
task for the very move Levinson attributes to Kramer — focusing on state interests rather than
institutions. After insisting that Wechsler has wrongly conflated state-based interests and the
governance prerogatives of state institutions, Kramer continues: “So far as I am aware, no one
defends federalism on the ground that it makes national representatives sensitive to private interests organized along state or local lines. Rather, federalism is meant to preserve the regulatory
authority of state and local institutions to legislate policy choices.” Id. at 222; see also Kramer,
supra note 13, at 1523 (arguing that parties “protect[] state institutions by inducing federal law-
2014]
PARTISAN FEDERALISM
1085
While there is much to be said for Kramer’s account, his characterization of the parties as noncentralized ideological hodgepodges misses
key features of our contemporary parties that have become only more
pronounced since he wrote. Some scholars who quarrel with Kramer’s
view argue that the parties are highly centralized, with national elites
driving presidential nominations, fundraising, and the formulation of
party agendas at both the national and state levels.19 But characterizing the parties as centralized entities still seems to miss the mark. Today’s parties are best understood as networks of individuals and organizations, including elected representatives and party officials, but
also allied interest groups, issue activists, political action committees
(PACs) and Super PACs, candidates’ personal campaign organizations,
political consultants, and the like.20 While national party committees
may be more powerful than their state counterparts, this does not
mean the parties are fully centralized. To the contrary, there is a
strong argument that the parties have become more decentralized over
time, just not along a federalism axis. Private individuals and organizations have replaced state and local governments as loci of party influence.21 In a recent publication defending its role, for instance, the
Republican National Committee barely attempts to conceal anxiety
about its control over the “multitude of . . . third-party groups that we
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
makers to take account of (at least some) desires of state officials” (emphases added)). Kramer’s
revision of process federalism assumes state politicians will defend state government autonomy
but does not explain why this would be so. For a safeguards account that defines federalism in
terms of interests rather than institutions, see Franita Tolson, Benign Partisanship, 88 NOTRE
DAME L. REV. 395 (2012); and Franita Tolson, Partisan Gerrymandering as a Safeguard of Federalism, 2010 UTAH L. REV. 859.
19 See, e.g., Paul Frymer & Albert Yoon, Political Parties, Representation, and Federal Safeguards, 96 NW. U. L. REV. 977, 980 (2002) (“Today, national party leaders bear far less of a relationship to local or state party organizations, and instead shape the nomination process and raise
the money to mount national campaigns that are in many ways divorced from local concerns and
political pressures.”); see also, e.g., ALDRICH, supra note 12, at 269–74 (describing nationalization
of both parties and arguing that flow is “top down,” id. at 273 (internal quotation marks omitted));
Thomas M. Holbrook & Raymond J. La Raja, Parties and Elections, in POLITICS IN THE
AMERICAN STATES 63, 78–80, 98 (Virginia Gray et al. eds., 10th ed. 2013) (“State parties have
also come into the orbit of the national party organizations, which, through massive transfers of
funds plus supplies of personnel and expertise, now use the state parties to implement national
campaign strategies.” Id. at 98.). Kramer himself appreciated that state parties had lost strength
as elections became more candidate centered and national committees began to assume greater
control over party operations. See Kramer, supra note 13, at 1527–28, 1536–38.
20 See, e.g., DAVID KAROL, PARTY POSITION CHANGE IN AMERICAN POLITICS (2009)
(advancing a model of political parties as coalitions of groups); SETH E. MASKET, NO MIDDLE
GROUND (2009) (examining the role of “informal party organizations” in controlling contemporary political parties); Kathleen Bawn et al., A Theory of Political Parties: Groups, Policy Demands and Nominations in American Politics, 10 PERSP. ON POL. 571 (2012) (proposing a theory
of political parties in which interest groups and activists are the key actors).
21 See generally MASKET, supra note 20 (arguing that local party organization is quite powerful if we understand local parties as informal networks of office holders, interest group leaders,
activists, consultants, and the like).
1086
HARVARD LAW REVIEW
[Vol. 127:1077
will refer to as ‘Friends and Allies.’”22 While “applaud[ing] the efforts
of these organizations to augment the traditional political party infrastructure,” the report insists “it is clear that the RNC has a central and
critical role to play in leading our Party forward.”23
If the networked nature of contemporary parties complicates claims
of centralization, it also points to what is in fact notably absent from,
and in tension with, Kramer’s account: the two parties’ increasing
ideological coherence and polarization. If in the mid–twentieth century party affiliation and ideology traveled separately, in the early
twenty-first century they travel together, and the parties have grown
ever more polarized.24 Much of this transformation follows from the
party realignment of the South, a decades-long shift initiated as early
as the New Deal and spurred in particular by the Voting Rights Act of
1965,25 during which conservative Southern Democrats moved to the
Republican Party and liberal, mostly Northern, Republicans embraced
the Democratic Party.26 The alignment of partisanship and ideology — and the concomitant reduction, if not elimination, of regional
party difference27 — occurred with respect to both state and national
parties.28 Today’s party networks are also both a cause and an effect
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
22
23
REPUBLICAN NAT’L COMM., GROWTH & OPPORTUNITY PROJECT 44 (2013).
Id.; see also id. at 49 (“Chairman Priebus should call for a command performance meeting
of the leadership of our friends and allies and not allow anyone to leave the room until it’s determined, to the extent allowed by law, who is doing what that can be divided legally.”).
24 See, e.g., Pildes, supra note 12, at 275 (“American democracy over the last generation has
had one defining attribute: the rise of extreme partisan polarization.”); see also ABRAMOWITZ,
supra note 12; ALDRICH, supra note 12; NOLAN MCCARTY ET AL., POLARIZED AMERICA
(2006); Bawn et al., supra note 20, at 582 fig.3; Layman et al., supra note 12.
25 42 U.S.C. §§ 1973 to 1973bb-1 (2006 & Supp. V 2011).
26 See, e.g., EARL BLACK & MERLE BLACK, THE RISE OF SOUTHERN REPUBLICANS 72–
113 (2002); GREEN ET AL., supra note 6, at 140–63; Pildes, supra note 12, at 287–97; see also Paul
Frymer, Debating the Causes of Party Polarization in America, 99 CALIF. L. REV. 335 (2011)
(tracing the Southern realignment following the Voting Rights Act to a broad set of historical
forces from the civil rights movement). From the late nineteenth century until the late twentieth
century, the South had a one-party system. Laws and practices that disenfranchised large portions of the electorate locked the Democratic Party in power, and even after the Voting Rights Act
increased access to the vote, robust two-party competition did not emerge until the 1980s and
1990s. During the century of artificial one-party rule, Southern Democrats differed significantly
from Northern Democrats, and largely because of the Democratic Party’s lock on the South, the
Republican Party was also more ideologically diverse. Liberal and moderate Democrats thus often had more in common with liberal and moderate Republicans than with conservative Democrats. See generally ALAN I. ABRAMOWITZ, THE POLARIZED PUBLIC? 13–15, 42–45 (2013);
ALDRICH, supra note 12, at 209, 248, 253, 311–12; GREEN ET AL., supra note 6, at 163.
27 See generally NICOLE MELLOW, THE STATE OF DISUNION (2008) (exploring how regional divisions shape national partisan politics).
28 See, e.g., Boris Shor & Nolan McCarty, The Ideological Mapping of American Legislatures,
105 AM. POL. SCI. REV. 530, 549–50 (2011) (“[T]he states appear to follow the national pattern of
high and growing [party] polarization.”); see also Robert S. Erikson et al., Public Opinion in the
States: A Quarter Century of Change and Stability, in PUBLIC OPINION IN STATE POLITICS
229, 238, 246 (Jeffrey E. Cohen ed., 2006) (“During the late 1970s, there is little obvious connec-
2014]
PARTISAN FEDERALISM
1087
of party cohesion and polarization. The rise of allied interest groups
has made the parties more ideologically distinct, as these groups have
pushed the parties to take positions on divisive issues, such as abortion, global warming, and gay rights,29 that have shaped both national
and state elections.30 And the ideological distinctiveness of the parties
has, in turn, fostered interest group alliances with them.
The relationship between centralization and ideological coherence
is thus quite different from that posited by Kramer and his predecessors. In an era of “antiparties,”31 intraparty difference facilitated decentralization, while decentralization amplified difference.32 But in
today’s world of more ideologically cohesive, polarized parties, decentralization does not yield the same marked divergence: individuals and
organizations throughout the networked party advance similar ends.
Although this understanding of the parties as ideologically cohesive
and polarized is in tension with Kramer’s view of them as
nonprogrammatic, it bolsters his claim that partisanship generates
thick ties between state and national politicians. Kramer argues that
party affiliation creates a sense of comradeship among fellow partisans, yet his account of nonprogrammatic, nonideological parties raises
questions about the strength of intraparty camaraderie.33 Cohesive,
polarized parties furnish a stronger basis for such camaraderie. They
might, however, raise a new question: Is partisanship still the relevant
variable? In Kramer’s account, the role of partisanship was clear: if a
politician’s party ID did not correspond to her views on particular issues or her overarching ideology, it was partisanship as such that led
her to respect the desires of her copartisans. But if parties are ideologically identified, the work of partisanship is less obvious. Perhaps politicians cooperate — and, as I will discuss below, compete — because
of particular ideological commitments, and partisanship simply maps
onto this deeper-seated motivation?
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
tion between the partisanship of American states and their ideological preferences,” id. at 238,
“[but] [t]oday ideology and partisanship generally reinforce each other, so that states are either
Democratic and liberal or Republican and conservative,” id. at 246.).
29 See, e.g., Bawn et al., supra note 20, at 580–81; Layman et al., supra note 12, at 96–100; see
also Frymer, supra note 26, at 339–40; A. James Reichley, The Rise of National Parties, in THE
NEW DIRECTION IN AMERICAN POLITICS 175, 196–97 (John E. Chubb & Paul E. Peterson
eds., 1985).
30 See, e.g., Calabresi, supra note 18, at 798. These issues have even shaped officially nonpartisan municipal elections. Sarah Palin notoriously won election as the Mayor of Wasilla by brandishing her “passion for Republican ideology,” including on such hot-button issues as abortion,
gun rights, and the place of religion in public life. William Yardley, Palin Start: Politics Not as
Usual, N.Y. TIMES, Sept. 3, 2008, at A1.
31 GRODZINS, supra note 8, at 284.
32 See, e.g., id. at 255–70 (arguing that, because members of Congress could not be corralled by
party solidarity or discipline to focus on a party agenda, they often deferred to local concerns).
33 Kramer, supra note 13, at 1539, 1542.
1088
HARVARD LAW REVIEW
[Vol. 127:1077
Although ideology matters too, partisanship is not epiphenomenal.
As I will describe further in Part II, once individuals associate with a
political party — whether because of their ideological predispositions,
their membership in particular social groups, or often the overlap between the two34 — partisanship is a powerful, stable identification that
shapes how they process information and what they believe.35 Today’s
cohesive parties inform people’s “most abstract and enduring beliefs
about society and public affairs,”36 as well as their short-term political
evaluations and views on discrete issues.37 Studies have shown, for
example, that attitudes toward social policies depend on the stated position of the political parties even when these positions run counter to
individuals’ ideological beliefs.38 And as party positions on issues
crystallize, individuals’ partisanship can reshape even their preexisting
beliefs.39
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
34 The debate in the political science literature about the causes of partisan identification,
compare, e.g., ABRAMOWITZ, supra note 12 (ideology), with, e.g., GREEN ET AL., supra note 6
(social groups), is often overstated insofar as social groups and ideologies are overlapping, mutually constitutive sources of party identification. Cf. MICHAEL WALZER, POLITICS AND PASSION
93 (2004) (“Socialization in the family, the earliest form of political education, is just agitprop with
love.”).
35 See generally GREEN ET AL., supra note 6; ROSENBLUM, supra note 6; Thomas M. Carsey
& Geoffrey C. Layman, Changing Sides or Changing Minds? Party Identification and Policy
Preferences in the American Electorate, 50 AM. J. POL. SCI. 464 (2006).
36 Paul Goren, Party Identification and Core Political Values, 49 AM. J. POL. SCI. 881, 894
(2005); see also id. at 895 (noting that these include beliefs about equal opportunity, limited government, and moral tolerance).
37 See, e.g., Larry M. Bartels, Beyond the Running Tally: Partisan Bias in Political Perceptions, 24 POL. BEHAV. 117, 120 (2002); Carsey & Layman, supra note 35, at 475; Holbrook & La
Raja, supra note 19, at 74–75.
38 See, e.g., Geoffrey L. Cohen, Party over Policy: The Dominating Impact of Group Influence
on Political Beliefs, 85 J. PERSONALITY & SOC. PSYCHOL. 808, 811 (2003) (showing, for example, that liberal Democrats supported a harsh welfare program when told Democrats supported it,
and conservative Republicans supported a generous one when told Republicans supported it).
39 As the parties assumed distinct positions on abortion after Roe v. Wade, 410 U.S. 113
(1973), for instance, a significant number of elected officials and voters changed their views to
align with their party’s position. See, e.g., Geoffrey C. Layman & Thomas M. Carsey, Party Polarization and “Conflict Extension” in the American Electorate, 46 AM. J. POL. SCI. 786 (2002).
The reverse can also occur: policy preferences may lead one to identify with a different party if
the issue is significant enough. But the influence of partisanship on policy preferences is usually
greater than the reverse. See, e.g., Carsey & Layman, supra note 35, at 474 (“[W]e find: issuebased party conversion on some particularly powerful, emotional, and polarizing issues only
among individuals who are aware of party differences on the issue and who attach particular salience to it. Yet, even in this group, there is evidence of individuals changing their policy attitudes
in response to their party affiliations. Furthermore, among those aware of party differences on an
issue but for whom the issue is not salient, the only observable effect is of party-based change in
issue attitudes.”); see also, e.g., GREEN ET AL., supra note 6, at 141 (noting that the Voting Rights
Act was an “exogenous shock to the electoral system” that ultimately produced a party realignment, but stressing that half of the Southern realignment followed from cohort replacement and
that individual changes in party affiliation occurred very gradually).
2014]
PARTISAN FEDERALISM
1089
At the level of groups and institutions, moreover, partisanship has
distinct organizational force. There is, as an initial matter, a corollary
of partisanship’s role in shaping individuals’ beliefs: parties do not
simply reflect cleavages that already exist in society; they make issues
salient at particular points in time, and they connect issues to generate
related fronts of policy disagreement.40 Moreover, state and federal
politicians are readily identifiable to themselves and others as members of political parties, and this membership makes it easy to affiliate,
including across the state-federal divide. Perhaps most critically, party
organizations and their “Friends and Allies” work throughout the
nation to elect fellow partisans — and to raise and distribute funds —
in furtherance of party agendas.41 There are, thus, calculating and
strategic, as well as affective and identity-based, reasons why partisanship shapes elected officials’ positions and generates intraparty
camaraderie.
If party politics undergirds cooperation between state and federal
officials of the same party, however, so too does it undergird competition between state and federal officials of different parties — a dynamic absent from, and in some tension with, Kramer’s account. In a time
of ideologically cohesive, polarized parties, state governments furnish a
critical platform for the party out of power to fight the party in power
at the national level.
2. Federalism. — State challenges to the federal government are a
staple of federalism doctrine and scholarship. In its oft-quoted
catalogue of federalism’s values, for instance, Gregory v. Ashcroft42 invokes such state checks as “[p]erhaps the principal benefit of the federalist system.”43 While, as in Gregory, the literature usually focuses
on how states may stop the federal government from overreaching, it
recognizes the force of states’ affirmative challenges as well. States, on
this view, check the federal government not only by obstructing its actions but also by formulating opposing policies and putting them into
practice.44
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
40
41
ROSENBLUM, supra note 6, at 365–66.
See, e.g., Pildes, supra note 12, at 325; Ciara Torres-Spelliscy, The $500 Million Question: Are
the Democratic and Republican Governors Associations Really State PACs Under Buckley’s Major
Purpose Test?, 15 N.Y.U. J. LEGIS. & PUB. POL’Y 485, 502–05 (2012); REDMAP 2012 Summary
Report, REPUBLICAN ST. LEADERSHIP COMMITTEE (Jan. 4, 2013), http://rslc.com/_blog/News
/post/REDMAP_2012_Summary_Report; see also infra section IV.A, pp. 1135–42.
42 501 U.S. 452 (1991).
43 Id. at 458; see also, e.g., Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J.
1425, 1493–506 (1987); Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1, 4 (1988).
44 See, e.g., Bond v. United States, 131 S. Ct. 2355, 2364 (2011) (stating that federalism serves
individual liberty both by limiting the power of the federal government and by empowering states
to enact their own “positive law”).
1090
HARVARD LAW REVIEW
[Vol. 127:1077
As Daryl Levinson has argued, however, our classic accounts fail to
describe why states would check the federal government.45 Today’s
polarized parties furnish an explanation. The state and federal governments may not themselves be “self-interested political actors with
empire-building ambitions, pitted against each other in a competition
for power,” as Levinson criticizes federalism doctrine and scholarship
for assuming,46 but this is a decent description of the partisan officials
who populate them.47 And as Democratic and Republican politicians
compete to gain power and implement partisan agendas, federalism
provides critical infrastructure for their conflict. In a nation with fifty
states, a sizeable number are always governed by the party out of
power at the national level.48 Currently, twenty-three states have Republican governors and legislatures, while thirteen have Democratic
governors and legislatures.49 States governed by the party out of power in Washington seek both to obstruct federal policy and also to
challenge it through their affirmative acts.
With ideologically
cohesive, polarized parties that operate at both the state and national
level, federalism furnishes a consistent forum for party conflict, and
such conflict need not involve all fifty states for its effects to be felt
nationwide.
If partisanship motivates state challenges that conventional federalism doctrine and scholarship often take for granted, however, it also
affects the nature of these challenges. The same accounts that paint
states and the federal government as empire-building, self-interested
actors tend to characterize state checks as emanating from states’
distinctiveness and distance from the federal government. The centrality of partisanship instead points to contestation grounded in overlap and integration. Party politics means that state opposition need
not be based on something essentially “state” rather than “national.”
Instead of representing distinctively state interests against the distinctively national interests of the federal government, states may participate in substantive controversies that are national in scope. Partisan
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
45
46
47
See Levinson, supra note 4, at 944.
Id.
While Levinson has addressed the role of polarized political parties with respect to the separation of powers, see, e.g., id. at 959, he has not considered how they affect our federal system,
even as he has argued that “contingent empirical characteristics of the political process” determine
the “allocation of policy space between the federal and state governments,” id. at 943.
48 See infra pp. 1096–97 (discussing complications of deeming one party “in power” or “out of
power”).
49 See Governors & Partisan Splits 2013, STATESIDE ASSOCIATES, http://www.stateside.com
/governors-partisan-splits-2013 (last updated Nov. 22, 2013). In 2013, twenty-five states also had
veto-proof legislative supermajorities, including three states with divided governments. See
Gregory Korte, One-Party Dominance Grows in States, USA TODAY, Dec. 14, 2012, at A6.
2014]
PARTISAN FEDERALISM
1091
federalism underscores that “the national” is not defined by Washington alone.50
This nationalist dimension of partisan federalism informs both the
nature of state actions and the actors involved. It means, first, that
state opposition does not necessarily arise from or insist upon dual
sovereignty, the idea that the states must enjoy a legally defined sphere
of exclusive authority. To be sure, states sometimes contest federal
policy by arguing that the federal government has acted in excess of its
powers and encroached on state prerogatives, and partisanship offers a
good clue to when state actors make these claims. But states also contest federal policy by enacting competing laws in the same regulatory
area and administering federal law uncooperatively.51 This point does
not reduce federalism to simple decentralization — such actions depend on state officials elected and appointed independently of the federal government — but it does call attention to the ways states level
challenges while governing in domains also occupied by the federal
government.
Second, partisanship disaggregates support for state versus federal
power from state versus federal actors. If partisanship, not something
about states qua states, motivates state challenges to the federal government, it follows that both state and federal actors may support
these challenges. Party politics thus helps explain why, at any given
time, we see some states cheerleading exercises of federal power and
some of the staunchest proponents of state power sitting in Washing–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
50 In a recent paper, James Gardner argues that the national parties have “colonize[d]” state
politics and that this undermines the states’ ability to dissent from national political decisions.
James A. Gardner, The Myth of State Autonomy: Federalism, Political Parties, and the National
Colonization of State Politics, 29 J.L. & POL. 1, 17 (2013) (internal quotation marks omitted). But
partisanship, which Gardner invokes only as a source of convergence, is also a powerful source of
disagreement. Party politics means there is not one national political agenda that exists either at
the federal level or, through colonization, at the state level. There are competing political agendas. And the states provide a forum for partisan competition, as states controlled by one party
push back against the federal government controlled by the other. Although this disagreement is
not based on something specifically “state” versus something specifically “national,” American
federalism has always been, in part, about presenting different, competing versions of the national
will. The absence of “a distinctive state political agenda” need not interfere with states’ ability to
“dissent from or to affect in any meaningful way the course of national policy making,” as
Gardner suggests. Id. at 43. When states disagree with the federal government’s policy decisions
and advance a different national position, that too is federalism at work. Gardner’s related concern — that the colonization of state politics inhibits the range of positions that state actors are
capable of imagining and advancing — seems to me a deeper one, but one that has to do less with
values of contestation and checking and more with values such as diversity and selfdetermination. I offer some tentative thoughts about partisanship’s intersection with these values
in Part III. While not denying the possibility that if states give effect to a vision of the national
will, their ability to represent more particularistic interests may be concomitantly reduced, I suggest that partisan federalism need not entail top-down colonization and centralization.
51 See Jessica Bulman-Pozen & Heather K. Gerken, Essay, Uncooperative Federalism, 118
YALE L.J. 1256 (2009).
1092
HARVARD LAW REVIEW
[Vol. 127:1077
ton — and why this does not mark the end of federalism. Doctrine
and scholarship often gloss over the way in which debates about state
versus federal power function as proxies for substantive policy disputes,52 but partisanship suggests that a derivative, contingent attachment to state power need not diminish the force of federalism’s
check. For federalism to facilitate opposition, only some states must
challenge the federal government, and partisanship explains both why
some states will cast their lot with the federal government and why
others will oppose its actions. Partisanship similarly reveals why some
federal politicians will be enamored of state authority: their party is in
the minority at the national level.53
In this sense, Kramer’s insight that party affiliation aligns the interests of federal politicians with their state counterparts remains a
powerful one. But there is a twist: state and federal politicians alike
will champion state or federal action depending on the partisan composition of Congress and the presidency. While Kramer understood
partisanship to serve state officials’ inherent interest in protecting state
power, this Article suggests that federalism serves both some state and
some federal officials’ interest in advancing partisan goals. Certain
federal representatives favor the states not simply because they have
connections to state officials (who may themselves welcome national
intervention), but also because they cannot achieve their partisan objectives at the national level.
Indeed, federalism offers more opportunities for each party to affirmatively advance its objectives than does the separation of powers,
which has received attention as a framework for partisan competition.54 While the national separation of powers hinges on the assent of
multiple actors who constitute a single government, federalism depends on the diversity of multiple actors who constitute different governments. The same partisan dynamics that yield gridlock in Wash–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
52 But see Ernest A. Young, Welcome to the Dark Side: Liberals Rediscover Federalism in the
Wake of the War on Terror, 69 BROOK. L. REV. 1277, 1279 (2004) (defending opportunistic federalism); cf. Lynn A. Baker, Putting the Safeguards Back into the Political Safeguards of Federalism, 46 VILL. L. REV. 951, 955 (2001) (critiquing process federalism for allowing “a majority of
states [to] impose their own policy preferences on a minority of states”).
53 See George A. Krause & Ann O’M. Bowman, Adverse Selection, Political Parties, and Policy Delegation in the American Federal System, 21 J.L. ECON. & ORG. 359, 363 (2005) (“[A]s partisan congruence among national level political institutions increases, the incentive to shift power
to subnational counterparts decreases . . . .”).
54 See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV.
L. REV. 2311 (2006) (arguing that our cohesive, polarized parties are the real force behind the separation or unification of powers in our system and that whether we have a system that involves
competition between the President and Congress thus depends on whether the legislative and executive branches are divided by party). Today’s partisanship, in fact, seems to yield perpetually
divided government, as even party-unified government generates gridlock in an era of the filibuster and other minority-empowering procedural tools.
2014]
PARTISAN FEDERALISM
1093
ington may thus yield differentiated action in the states. If the minority party can more readily veto the majority’s choices from within the
federal government, it can more readily instantiate an opposing view
from the states.55 Comparing federalism and the separation of powers
in this way, however, threatens to obscure a more significant point:
federalism and the separation of powers are interlocking systems.56
National and state actors alike turn to both national and state institutions to advance their partisan agendas.57
3. Origins. — Before exploring contemporary examples of partisan
federalism, a very brief historical note is in order. I have suggested
that political actors’ use of both state and federal governments to articulate and amplify competition between the political parties is a recent phenomenon following, in particular, from the rise of ideologically
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
55 To be sure, unilateral action is possible at the national level. Faced with legislative gridlock,
for instance, the President can act on his own. But in so doing, he is generally understood to be
eschewing, if not violating, a tenet of constitutional checks and balances — that the assent of multiple branches is required before the government may act. Oppositional, affirmative acts by
states, in contrast, are widely understood as a component of federalism’s check. At the same time,
state governments face their own separation of powers–related obstructionism; even unified party
government does not ensure the dominant party’s ability to enact its agenda. But the prevalence
of unified party government and legislative supermajorities makes affirmative acts easier at the
state level.
56 See generally Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers,
112 COLUM. L. REV. 459 (2012) [hereinafter Bulman-Pozen, Federalism as a Safeguard]. My previous work focused on how the states may limit federal executive power in an era of executive
dominance, though some recent developments — in particular, the use of waivers in cooperative
federalism programs, which seems likely only to increase in the wake of National Federation of
Independent Business v. Sebelius, 132 S. Ct. 2566 (2012), see Samuel R. Bagenstos, Federalism by
Waiver After the Health Care Case, in THE HEALTH CARE CASE 227, 227 (Nathaniel Persily,
Gillian E. Metzger & Trevor W. Morrison eds., 2013) — raise questions about collusion between
states and the federal executive. For some initial thoughts, see Jessica Bulman-Pozen, From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism, 123
YALE L.J. (forthcoming Apr. 2014).
57 Although my aim is not to intervene in the process federalism debate, the account I have
sketched here suggests that process federalism’s proponents may be overlooking the most significant political safeguard of federalism: it is not the relationship between state and federal officials
as a general matter, but rather the role of the minority party within the federal government. As I
have argued, Kramer’s process federalism assumes that state politicians will seek to protect state
autonomy and that federal politicians will respect state politicians’ interests, but it is not clear
why state politicians will themselves seek to protect state autonomy. See supra note 18. Indeed,
taking partisan politics seriously suggests that they often will not; substantive political interests
will shape whether state politicians prefer state or federal action. But if taking partisan politics
seriously challenges our existing political safeguards account, it also calls attention to a largely
overlooked phenomenon: the minority party at the national level will opportunistically seek to
protect state autonomy. Pointing to the minority party’s incentives does not, in itself, resolve
whether political safeguards suffice, but it does alter the questions we should be asking, underscoring, for instance, the ways in which federalism’s safeguards are bound up in the separation of
powers and intrabranch dynamics within the national government. Cf. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321 (2001) (arguing that the separation of powers protects state autonomy by limiting the types of federal lawmaking that may
displace state law).
1094
HARVARD LAW REVIEW
[Vol. 127:1077
cohesive, polarized parties in the late twentieth century. Yet partisan
federalism has deep roots. In the early Republic, two emergent, polarized parties similarly turned to state governments to stage national
partisan conflict. Consider, for instance, the Virginia and Kentucky
Resolutions responding to the Alien and Sedition Acts of 1798.58 Often
invoked as a seminal moment in American federalism, this state resistance reflected, as much as anything, the use of state governments
by national and state actors alike to wage partisan battle.59
The Acts were Federalist legislation opposed by Republicans at
both the national and state levels and supported by Federalists at both
the national and state levels.60 While the Republican position was
most clearly advanced by Virginia and Kentucky, the states’ Resolutions were ghostwritten by James Madison and Thomas Jefferson at a
time when Jefferson was Vice President and Madison had recently retired from Congress (and was soon to become Jefferson’s Secretary of
State). And while Virginia and Kentucky maintained that the national
government had overreached, the other states — governed by Federalists — declined to join the cry against federal usurpation and sided
with the national government.61
Although Madison’s role in the Alien and Sedition Acts controversy
in part reflects his conversion from a nationalist to a states’ rights
supporter, this dichotomous framing risks overstating the tension be–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
58
James Madison, Virginia Resolutions of 1798, reprinted in 4 THE DEBATES IN THE SEVSTATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 528
(Jonathan Elliot ed., 1836) [hereinafter ELLIOT’S DEBATES]; Thomas Jefferson, Kentucky Resolutions of 1798 and 1799, reprinted in 4 ELLIOT’S DEBATES, supra, at 540.
59 Cf. Josh Chafetz, Multiplicity in Federalism and the Separation of Powers, 120 YALE L.J.
1084, 1111 (2011) (reviewing ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF
AMERICAN FEDERALISM (2010)) (“Ultimately, the debate over the Kentucky and Virginia Resolutions was a debate over the ability and authority of the states to serve as loci of protest against
unconstitutional and oppressive federal laws. The political branches of the states, serving as a
competing power source to the federal political branches, organized opposition using the rhetoric
of sovereignty.”).
60 See, e.g., RICHARD HOFSTADTER, THE IDEA OF A PARTY SYSTEM 112 (1969) (“The
[Virginia and Kentucky] resolutions were, above all, party propaganda, but propaganda resting on
a regional power base . . . .”). As Richard Hofstadter’s framing underscores, party positions have
themselves been informed by regional interests. Moreover, because regions have no legal existence as such, regional interests have been advanced in state fora. A main cleavage between the
Federalists and Republicans thus concerned the respective power of state and national governments. But, importantly, this commitment to state or federal power became a matter of party
identification rather than following from an actor’s state or national role. Cf. DAVID
WALDSTREICHER, IN THE MIDST OF PERPETUAL FETES 246–93 (1997) (arguing that regional
political identities emerged together with party politics in the early Republic, and that New England, the South, and the West each contested particular federal policies while claiming to represent the real United States, rendering regionalism a nationalist form of dissent).
61 See, e.g., Answer of the State of Delaware, in 4 ELLIOT’S DEBATES, supra note 58, at 532
(arguing that “the resolutions from the state of Virginia” constituted an “unjustifiable interference
with the general government”).
ERAL
2014]
PARTISAN FEDERALISM
1095
tween nationalism and federalism. Madison’s turn to the state legislatures gave concrete meaning to his earlier suggestion in the Federalist
Papers that the states could articulate a competing vision of the national will.62 Many of the means by which he suggested the American
people might use the states to check the national government sound in
shared authority and mutual dependence rather than separation, and
he argued that the states would be most effective when they acted together, as the Virginia and Kentucky Resolutions urged without success.63 In his National Gazette essays, Madison similarly resisted viewing the states as sites of distinct “interests and affections,” but he
insisted that maintaining the states as separate sites of government
power was necessary to preserve the accountability of the national
government to the people.64
Madison’s role in drafting the Virginia Resolution and the later
Virginia Report underscores not only American federalism’s longstanding nationalist dimension, but also its longstanding opportunistic dimension.65 Federalism divides power and offers a structure for substantive views to compete. It does not specify what the recipients of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
62 See THE FEDERALIST NO. 46, at 294 (James Madison) (Clinton Rossiter ed., 2003); THE
FEDERALIST NO. 51 (James Madison), supra, at 322–23; see also 1 BRUCE ACKERMAN, WE
THE PEOPLE: FOUNDATIONS 185–86 (1991); SAMUEL H. BEER, TO MAKE A NATION 21
(1993) (“[On this Madisonian view the] states are not rival communities carved out of the greater
jurisdiction which . . . seek to act on an exclusive and inward-looking concern for their distinct
interests. Like the federal government, state governments also express the national will.”); Barry
Friedman, Valuing Federalism, 82 MINN. L. REV. 317, 403 (1997); Larry D. Kramer, Lecture,
“The Interest of the Man”: James Madison, Popular Constitutionalism, and the Theory of Deliberative Democracy, 41 VAL. U. L. REV. 697, 706 n.19 (2006).
63 See, e.g., THE FEDERALIST NO. 46 (James Madison), supra note 62, at 297; see also BEER,
supra note 62, at 387–88; James S. Liebman & Brandon L. Garrett, Madisonian Equal Protection,
104 COLUM. L. REV. 837, 909–12, 957–62 (2004).
64 James Madison, Consolidation, NAT’L GAZETTE, Dec. 3, 1791, reprinted in 14 THE PAPERS OF JAMES MADISON 137, 138 (Robert A. Rutland et al. eds., 1983). Recognizing the inevitability of political parties, Madison’s contemporaneous writings suggest that their evil could be
combated by “making one party a check on the other” — an idea not dissimilar to his view of
state-federal relations. James Madison, Parties, NAT’L GAZETTE, Jan 23, 1792, reprinted in 14
THE PAPERS OF JAMES MADISON, supra, at 197. This is not, however, to suggest that Madison
cheerfully welcomed the actual party competition he saw unfolding. See, e.g., James Madison, A
Candid State of Parties, NAT’L GAZETTE, Sept. 22, 1792, reprinted in 14 THE PAPERS OF
JAMES MADISON, supra, at 370.
65 See Young, supra note 52, at 1308–09 (“[O]pportunism seems to be exactly what our Founders expected — and counted upon . . . . The most reliable ‘political safeguard of federalism’ in the
Founders’ scheme . . . is that whenever a particular federal measure is proposed, the people opposed to that measure on its policy merits will have an incentive to argue that the matter should
be left to the States.”). See generally DAVID M. POTTER, The Historian’s Use of Nationalism and
Vice Versa, in HISTORY AND AMERICAN SOCIETY 60, 99 (Don E. Fehrenbacher ed., 1973)
(“Scratch a spokesman of state sovereignty and you find . . . almost invariably a man who sees
that he is outnumbered; look beneath the rhetoric which exalts federal supremacy and you discover a motive on the part of a majority group to remove some irksome restriction upon the use of
power.”).
1096
HARVARD LAW REVIEW
[Vol. 127:1077
divided power should use it for, nor does it equate particular views
with one level of government or the other.66 Claims that political actors undermine federalism by marshaling arguments for state power in
an opportunistic way and treating federalism as a convenient arrangement through which to pursue policy agendas indict our Founders as well as contemporary politicians. More deeply, such claims
overlook the significance of federalism in establishing loci of political
conflict, whether this conflict is driven by state institutional interests,
partisanship, or something else. While the specifics of the arrangement
are mutable, the fact that states exist as separate sites of governance
means political conflict will be channeled through them.67
B. State Opposition to the Federal Government
If the account of partisan federalism I have offered so far is correct,
we can expect that party politics will lead states to challenge the federal government. Not all the states, and not the whole federal government — rather, those states that have a partisan affiliation different
from the dominant party at the federal level. These states will likely
find allies within the federal government along party lines, and they
will themselves be opposed not only by portions of the federal government but also by other states. Is this, in fact, what we see? While
partisanship cannot explain all state opposition, it captures a good deal
of what happens on the ground. Below, I outline three main ways that
states and their federal allies contest national policy: they argue that
the federal government is exceeding its authority and encroaching on
state autonomy; they enact their own legislation to prod the federal
government into action or to set a different course; and they administer federal programs in ways that interfere with federal goals.
Before describing such challenges, an important caveat is in order.
I have suggested here that state and federal governments are “controlled” by one party or the other. That simple formulation obscures a
very messy reality, of course, especially during periods of divided government. Which party is deemed dominant varies not only across
time, but also across issues and forms of governance. Although I
sometimes address the partisan composition of Congress, my discussion of the national level focuses on the President. This is not only for
purposes of narrative economy. Although the President’s control over
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
66
67
See Young, supra note 52, at 1311.
See, e.g., Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism After Garcia, 1985 SUP. CT. REV. 341, 386–88; David B. Truman, Federalism and the Party
System, in AMERICAN FEDERALISM IN PERSPECTIVE 81, 89 (Aaron Wildavsky ed., 1967); cf.
Chafetz, supra note 59, at 1124 n.242 (maintaining that the virtue of the separation of powers
scheme is that it “creates opportunities within the governing structure for the representation of
different interests, thus allowing for the possibility of conflict” (emphases omitted)).
2014]
PARTISAN FEDERALISM
1097
the federal government is far from complete, his relative power over
the administrative apparatus and his ability to push (or veto) a legislative agenda matter, as do media-fed popular perceptions that the President is in charge. The public’s tendency to overstate the President’s
power itself shapes partisan competition in important ways.68 Similar
questions arise about which party is dominant at the state level; depending on the type of state action involved, I focus on either executive or legislative actors.69 To make the broad-strokes argument, I do
not always address these details in the text, but the footnotes provide a
little more texture.
1. Litigation: State Sovereignty. — The classic account of state
power hinges on sovereignty, the authority of the state to govern in its
own sphere without federal interference. Although sovereignty is not a
necessary predicate for state resistance,70 it is nonetheless a powerful
resource for resistance; indeed, claims of dual sovereignty may have
expressive value in preserving the states as counterbalances to the federal government even when those claims fail.71 It is not obvious why
state officials would defend state sovereignty,72 but partisanship explains why at least some state officials — and some federal officials —
are motivated to do so: their party is outnumbered at the national level. Even for state actors who might often have incentives to embrace
national policymaking, that is, state sovereignty looks good when their
party is out of power in Washington. And their copartisans in the federal government may similarly find themselves defending state power
from federal encroachment. Sovereigntism is, on this account, an epiphenomenon of partisanship.
The Patient Protection and Affordable Care Act73 (Affordable Care
Act) offers a clear illustration of this dynamic. The Act passed Congress with only Democratic votes.74 Upon its enactment, Republicans
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
68 See also infra Part II, pp. 1108–22 (discussing the relevance of this perception for partisan
identification with states).
69 At the state level, unified party government is currently prevalent. See, e.g., Governors &
Partisan Splits 2013, supra note 49 (showing that a supermajority of states have unified government). States do, however, present an additional possibility of divided government: an attorney
general of a different party from the governor. Compare id., with Attorneys General, STATESIDE
ASSOCIATES, http://www.stateside.com/attorneys-general-2013 (last updated Sept. 6, 2013).
70 See, e.g., Bulman-Pozen & Gerken, supra note 51, at 1309, 1312.
71 See, e.g., Adam B. Cox, Expressivism in Federalism: A New Defense of the AntiCommandeering Rule?, 33 LOY. L.A. L. REV. 1309 (2000); Vicki C. Jackson, Federalism and the
Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2218–28 (1998).
72 See, e.g., Levinson, supra note 4; supra note 18.
73 Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 26
and 42 U.S.C.).
74 For a detailed partisan history, see Vincent L. Frakes, Essay, Partisanship and
(Un)Compromise: A Study of the Patient Protection and Affordable Care Act, 49 HARV. J. ON
LEGIS. 135, 136–41 (2012).
1098
HARVARD LAW REVIEW
[Vol. 127:1077
immediately called for repeal, with one Republican House member
threatening to “meet the federal government at the state line to keep
them from mandating this bill upon us.”75 A group of states also
quickly sued to enjoin the law on the ground that it exceeded Congress’s powers and intruded on state sovereignty. While this was a
classic federalism argument, not all states signed on. The split was
perfectly partisan. Republican officials representing twenty-seven
states argued that the law violated state sovereignty, while Democratic
officials representing thirteen states defended the exercise of federal
power.76 Federal officials also made claims about state sovereignty
versus national power according to party affiliation. Most notably,
Republican senators joined Republican state officials in arguing that
the Act’s individual mandate intruded on state sovereignty.77 The Supreme Court’s ruling upholding the Act has not ended the debate but
simply moved it to the legislative and administrative realms: House
Republicans have voted repeatedly for repeal and denials of funds to
administer the Act,78 and Republican governors and especially Republican state legislators are refusing to set up insurance exchanges and to
participate in the Medicaid expansion on partisan grounds.79
The constitutional debate over the Affordable Care Act encapsulates partisan federalism. We see a fight about federalism involving
both state and federal actors, but arguments for state versus federal
authority map not onto the actor’s state or federal office but rather onto his or her party affiliation. Insofar as partisanship motivates posi–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
75 Lee Fang, Extreme Right Wing of GOP Leads Health Reform Repeal Effort, Pledges to
Repeal ‘the Whole Thing,’ THINKPROGRESS (Mar. 23, 2010, 9:55 AM), http://thinkprogress
.org/politics/2010/03/23/88084/repeal-whole-thing (quoting then–Tennessee Representative Zach
Wamp).
76 See Robert N. Weiner, Much Ado: The Potential Impact of the Supreme Court Decision Upholding the Affordable Care Act, in THE HEALTH CARE CASE, supra note 56, at 69, 69–72 (describing the partisan lineup and discussing intrastate disputes between Democratic attorneys general and Republican governors and vice versa); see also Kevin Sack, In Partisan Battle,
Governors Clash with Attorneys General over Lawsuits, N.Y. TIMES, Mar. 28, 2010, at A25 (describing intrastate conflicts between governors and attorneys general of different parties).
77 Brief of Members of the United States Senate as Amici Curiae in Support of Respondents
on the Minimum Coverage Provision Issue at 8, U.S. Dep’t of Health & Human Servs. v. Florida,
132 S. Ct. 2566 (2012) (No. 11-398) (arguing that the law “invad[es] the legitimate province of the
States”).
78 See, e.g., Jeremy W. Peters, House to Vote Yet Again on Health Care Repeal, N.Y. TIMES,
May 15, 2013, at A14.
79 See, e.g., Kyle Cheney & Jason Millman, Medicaid Expansion Stalls in Red States, POLITICO (May 2, 2013, 6:25 PM), http://www.politico.com/story/2013/05/medicaid-expansion-stalls
-in-red-states-90878.html; GOP Governors Reject ObamaCare Health Exchange Partnerships,
FOX NEWS (Feb. 17, 2013), http://www.foxnews.com/politics/2013/02/17/gop-governors-stand
-ground-on-obamacare-health-exchanges. On the many roles for states in implementing the Affordable Care Act, see Abbe R. Gluck, Essay, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 YALE L.J. 534,
576–94 (2011).
2014]
PARTISAN FEDERALISM
1099
tions on state sovereignty, the resulting federalism is contingent. But
because there is significant party division across the states and within
the federal government, the contingency is not a fragile one.
To be sure, a different way to tell the Affordable Care Act story is a
more standard federalism narrative: Republicans favor states’ rights
while Democrats favor national power. Especially because the states’
rights position is often a no-government-should-do-it rather than a
state-government-should-do-it position, Republicans have more often
been associated with arguments for state power than have Democrats.
But federalism doesn’t have a consistent partisan bent. On some issues, and during certain periods, Republicans favor the states; other
times, Democrats do.80
Consider, then, the most prominent federalism fight to reach the
Supreme Court in the Term after the health care case. With respect to
the federal Defense of Marriage Act81 (DOMA), Democratic states, and
some federal Democratic officials, argued that the federal government
had interfered with a sovereign state prerogative, while Republican
state and federal officials defended national power.82 In some respects,
particularly a temporal one, the fight over same-sex marriage is not a
partisan story. DOMA was enacted not long ago with bipartisan support, and same-sex marriage seems certain in the future to become a
national right, supported by Democrats and Republicans alike. The
partisan valence of same-sex marriage in general and DOMA in particular is far from stable; indeed, now that the Supreme Court has invalidated section 3 of DOMA, Democrats will likely focus on establishing a national right to same-sex marriage as Republicans double down
on states’ right not to recognize same-sex marriage.
But in recent years, same-sex marriage has been a partisan issue,
and state sovereignty has been attractive to Democrats as a vehicle for
its recognition. At both the state and the national level, Democratic
officials denounced the federal government’s definition of marriage as
an unwarranted intrusion on the states, while Republicans at both the
state and the national level supported it as a valid exercise of national
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
80 See, e.g., David J. Barron, Foreword: Blue State Federalism at the Crossroads, 3 HARV. L.
& POL’Y REV. 1 (2009); Heather K. Gerken, A New Progressive Federalism, 24 DEMOCRACY 37
(2012); Young, supra note 52; see also Gillian E. Metzger, Federalism Under Obama, 53 WM. &
MARY L. REV. 567, 610 (2011) (suggesting that progressives may have a lasting interest in
federalism).
81 Pub. L. No. 104-199, 110 Stat. 2419 (1996) (codified at 1 U.S.C. § 7 (2012); 28 U.S.C.
§ 1738C (2006)).
82 The Supreme Court struck down section 3 of DOMA, which defined marriage for purposes
of federal law as being between one man and one woman. United States v. Windsor, 133 S. Ct.
2675 (2013). Section 2, which concerns state recognition of same-sex marriages performed in other
states, remains in effect.
1100
HARVARD LAW REVIEW
[Vol. 127:1077
power.83 After a federal court of appeals struck down section 3 of
DOMA, fifteen states governed by Republicans sought certiorari, supporting a “national” interest in “conferring exclusive benefits on traditional marriage.”84 Massachusetts, with its Democratic Governor, Attorney General, and legislature, meanwhile, urged the Supreme Court
to recognize “the substantial impairment of State sovereignty wrought
by DOMA” and to hold section 3 of the Act unconstitutional as a violation of the Tenth Amendment and the Spending Clause.85
While red states have been more likely than blue states to champion state sovereignty against exercises of federal power, DOMA highlights that this alignment is not inevitable. And, though a striking recent example, same-sex marriage is not the only issue with respect to
which Democratic states have made arguments for state sovereignty or
Republican states have made arguments for national power.86 Depending on the particular question and the broader context, some
states champion state autonomy while others welcome national action.
State status as such does not tell us when states will make arguments
sounding in sovereignty and oppose the federal government. Party
politics offers a better, if necessarily imperfect, guide. And it becomes
still more powerful as we move from the realm of litigation to the
realm of legislation.
2. Legislation: Institutional Isomorphism. — States frequently
challenge the federal government by using their own lawmaking capacity to enact policies disfavored by the majority at the national level.
The institutional isomorphism of the state and federal governments —
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
83 Some Republicans have also advocated more sweeping national prohibitions on same-sex
marriage. See, e.g., Shailagh Murray, Same-Sex Marriage Ban Is Defeated, WASH. POST, June 8,
2006, at A1 (describing Republican support for a federal constitutional amendment banning samesex marriage).
84 Brief of the States of Indiana et al. as Amici Curiae in Support of the Petition at 3, 4, Bipartisan Legal Advisory Grp. of the U.S. House of Representatives v. Gill, 133 S. Ct. 2884 (2013)
(mem.) (No. 12-13) (capitalization omitted). The brief represented fourteen states with Republican governors and attorneys general and one state with a Democratic governor and a Republican
attorney general.
85 Response of the Commonwealth of Massachusetts in Support of Certiorari at 16, Gill, 133 S.
Ct. 2884, & Dept. of Health & Human Servs. v. Massachusetts, 133 S. Ct. 2887 (2013) (mem.)
(Nos. 12-13 & 12-15); see also, e.g., id. at 20 (calling DOMA “a sweeping and unprecedented federal incursion into an area that, for centuries, has been a domain of exclusive State regulation”).
A group of states governed predominantly by Democrats made similar sovereignty arguments after the Supreme Court granted certiorari in a related case. See Brief on the Merits for New York
et al. as Amici Curiae in Support of Respondent Edith Schlain Windsor at 2, Windsor, 133 S. Ct.
2675 (No. 12-307) (“[T]he amici States object to Congress’s unprecedented act of rejecting the decisions of sovereign States to authorize same-sex marriage.”).
86 For example, in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), a case concerning incorporation of the Second Amendment, only Democratic attorneys general made arguments about
state sovereignty. See Brief for the States of Illinois, Maryland, and New Jersey as Amici Curiae
in Support of Respondents, McDonald, 130 S. Ct. 3020 (No. 08-1521); see also, e.g., Massachusetts
v. EPA, 549 U.S. 497 (2007).
2014]
PARTISAN FEDERALISM
1101
the fact that state governments have the same structure as the federal
government, including legislative, executive, and judicial branches —
is an oft-noted feature of our polity.87 Party politics calls attention to a
possibility inherent in legislative isomorphism: states may adopt legislation that has been rejected, or not taken up, on partisan lines at the
federal level. Often working together directly or through allied interest
groups like the American Legislative Exchange Council, state and federal politicians shuffle ideas and even bill text back and forth, seeking
friendly partisan ground in which to plant their policies. The resulting
policies are only “state” or “national” in the sense of their site of enactment, not their purposes or intended audiences.
When President George W. Bush took office in 2001, for example,
the states began to enact legislation furthering the Democratic agenda.88 In many instances, states adopted policies that Democrats in
Congress had pushed for without success and that these national representatives then helped to defend from federal preemption. Most notably, while the Environmental Protection Agency (EPA) took no action on climate change and Democrats in Congress were unable to
enact legislation regulating greenhouse gas emissions,89 Democratic
legislators in California, Hawaii, and New Jersey passed laws to reduce greenhouse gas emissions, succeeding where their national counterparts failed.90 California’s efforts were the most significant because
of its leadership role under the Clean Air Act.91 The state enacted
laws authorizing a cap-and-trade program and imposing emissions
standards on motor vehicles.92 Sixteen other states, most with Demo–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
87
88
E.g., FEELEY & RUBIN, supra note 5, at 13–14.
See Barron, supra note 80, at 1–2; Robert A. Schapiro, Not Old or Borrowed: The Truly New
Blue Federalism, 3 HARV. L. & POL’Y REV. 33, 41–45 (2009). In addition to passing new laws,
Democratic state actors also interpreted existing state laws more aggressively than the federal
administration read complementary federal laws. See, e.g., Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. REV. 698, 725–26 (2011).
89 See, e.g., JONATHAN L. RAMSEUR & BRENT D. YACOBUCCI, CONG. RESEARCH SERV.,
RL34067, CLIMATE CHANGE LEGISLATION IN THE 110TH CONGRESS (2007); BRENT D.
YACOBUCCI, CONG. RESEARCH SERV., RL32955, CLIMATE CHANGE LEGISLATION IN THE
109TH CONGRESS (2005); Jennifer 8. Lee, The Warming Is Global but the Legislating, in the U.S.,
Is All Local, N.Y. TIMES, Oct. 29, 2003, at A20; Bucking Court, EPA Won’t Control Climate Gases, NBC NEWS (July 11, 2008, 2:12 PM), http://www.nbcnews.com/id/25641109/ns/us_news
-environment/t/bucking-court-epa-wont-control-climate-gases.
90 See JONATHAN L. RAMSEUR, CONG. RESEARCH SERV., RL33812, CLIMATE CHANGE:
ACTION BY STATES TO ADDRESS GREENHOUSE GAS EMISSIONS 8 (2008).
91 42 U.S.C. §§ 7401–7671q (2006 & Supp. V 2011); see id. § 7543(b) (2006) (granting California, as the only state to have adopted its own standards prior to March 30, 1966, a possible waiver
from federal preemption of vehicle emissions standards); id. § 7507 (permitting other states to
adopt California’s standards in lieu of federal standards).
92 Califonia Global Warming Solutions Act of 2006, 2006 Cal. Stat. 3419 (codified in scattered
sections of the CAL. HEALTH & SAFETY CODE); CAL. HEALTH & SAFETY CODE § 43018.5
(Deering 2012).
1102
HARVARD LAW REVIEW
[Vol. 127:1077
cratic legislatures, announced that they would adopt these standards.93
California required a Clean Air Act preemption waiver for its emissions standards,94 however, and the EPA denied the waiver.95 Democratic members of Congress accordingly turned their attention from
pushing federal solutions to supporting state efforts. The House Oversight Committee, for instance, spent five months investigating the
EPA’s waiver denial.96
The question of state versus federal regulation thus played out as a
partisan issue. Democrats in the federal and state legislatures alike
championed state authority and cast state legislatures as an extension
of the national legislature. California took up approaches that had
been broached, without success, in Congress. And both state and federal actors saw California’s actions as the best route to generating nationwide action on climate change because, in the short term, collective
adoption by other states of California’s standards could effectively create national policy and, over time, California’s law could “lead[] the
way” to new federal legislative and administrative action.97
A similar partisan divide erupted around the same time with respect to embryonic stem cell research. In 2001, President Bush issued
an executive directive preventing federal agencies from using federal
funds for research on new embryonic stem cell lines.98 With over-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
93 See RAMSEUR, supra note 90, at 12 n.59 (listing the states adopting the standards as Arizona, Colorado, Connecticut, Florida, Maine, Maryland, Massachusetts, New Jersey, New Mexico,
New York, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, and Washington). Twelve of the
states had Democratic legislatures, and one had a divided legislature. See 2008 Post-Election
Partisan Composition of State Legislatures, KSE PARTNERS LLP (Nov. 5, 2008), http://www
.ksefocus.com/pdf/2008Post-ElectionChart.pdf.
94 See 42 U.S.C. § 7543(b).
95 Notice of Decision Denying a Waiver of Clean Air Act Preemption for California’s 2009 and
Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles, 73 Fed.
Reg. 12,156 (Mar. 6, 2008).
96 See Memorandum from the House Comm. on Oversight and Gov’t Reform, Majority Staff,
to Members of the House Comm. on Oversight and Gov’t Reform, EPA’s Denial of the California
Waiver (May 19, 2008), available at http://oversight-archive.waxman.house.gov/documents
/20080519131253.pdf. The waiver was only granted when President Barack Obama assumed office. Notice of Decision Granting a Waiver of Clean Air Act Preemption for California’s 2009 and
Subsequent Model Year Greenhouse Gas Emission Standards for New Motor Vehicles, 74 Fed.
Reg. 32,744 (July 8, 2009).
97 Press Release, Representative Peter Welch, Welch Leads Congressional Effort on
Auto Standards, Citing Guidance of Vermont Court Case (Sept. 20, 2007) (quoting Rep. Peter
Welch) (internal quotation mark omitted), available at http://www.cleancarscampaign.org/web
-content/cleanairact/docs/welch-waiver-9-20-07.pdf.
98 See Press Release, The White House, Fact Sheet: Embryonic Stem Cell Research (Aug.
9, 2001), available at http://georgewbush-whitehouse.archives.gov/news/releases/2001/08/20010809
-1.html.
2014]
PARTISAN FEDERALISM
1103
whelmingly Democratic support,99 Congress passed a bill that would
permit federal funds to be used in research on new stem cell lines,100
but the President vetoed the legislation.101 As with climate change, the
states thus became the focus of Democratic policymaking for both
state and federal actors. In response to the federal restrictions, eight
states enacted laws between 2004 and 2008 to encourage and fund embryonic stem cell research.102 California again played a leading role,
passing a ballot initiative in 2004 that authorized $3 billion for embryonic stem cell research.103 While California’s use of a ballot initiative
might seem to bring its actions outside of party politics — direct democracy was, after all, designed to avoid the corrupting party influence104 — it actually underscores the opposite point: the increasing involvement of the parties in initiative contests.105 A main architect of
the proposition was a Democratic state senator who had sponsored
prior stem cell legislation, while California’s Republican Party generated the primary opposition to the measure.106 State lawmaking remained the leading tool for Democratic policy on embryonic stem cells
until President Barack Obama assumed office and brought national
policy in line with these state actions.107
During the Obama Administration, the tables have turned, and
now it is the Republican Party seizing on the power of state legislatures to advance its national agenda. Across the country, Republican
state legislatures have adopted strict voter ID laws after congressional
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
99
See U.S. Senate Roll Call Votes 109th Congress — 2nd Session, U.S. SENATE: LEGISLA& RECORDS, http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm
?congress=109&session=2&vote=00206 (last visited Nov. 24, 2013) (describing vote for H.R. 810).
100 See Stem Cell Research Enhancement Act of 2005, H.R. 810, 109th Cong. (2006).
101 Bill Summary & Status — 109th Congress (2005–2006) — H.R.810, THOMAS, http://
thomas.loc.gov/cgi-bin/bdquery/z?d109:HR00810:@@@R (last visited Nov. 24, 2013).
102 California, Connecticut, Illinois, Maryland, Massachusetts, and New Jersey had Democratic
legislatures when they enacted the relevant laws; New York’s two houses were divided, and Iowa’s
two houses were each almost perfectly split. See Stem Cell Research, NAT’L CONF. ST. LEGISLATURES, http://www.ncsl.org/issues-research/health/embryonic-and-fetal-research-laws.aspx (last updated Jan. 2008).
103 CAL. HEALTH & SAFETY CODE § 125291.10, .30 (Deering 2012).
104 See, e.g., THOMAS E. CRONIN, DIRECT DEMOCRACY 46–48 (1989) (quoting Nathan Cree
as stating in 1892 that direct democracy was intended to “break the crushing and stifling power of
our great party machines . . . [and] to relieve us from the dominance of partisan passions” (quoting
NATHAN CREE, DIRECT LEGISLATION BY THE PEOPLE 16 (1892))).
105 See Dan Smith, The Initiative to Party: The Role of Political Parties in State Ballot Initiatives, in INITIATIVE-CENTERED POLITICS 97 (David McCuan & Stephen Stambough eds.,
2005) (arguing that parties are increasingly involved in ballot measures because they may increase
voter turnout, serve as wedge issues, or promote party platforms); id. at 105–06 (discussing California initiatives).
106 See Joel W. Adelson & Joanna K. Weinberg, The California Stem Cell Initiative: Persuasion, Politics, and Public Science, 100 AM. J. PUB. HEALTH 446, 447–48 (2010).
107 See Exec. Order No. 13,505, 3 C.F.R. 229 (2010) (revoking President Bush’s directive).
TION
1104
HARVARD LAW REVIEW
[Vol. 127:1077
Republicans have been unable to enact similar laws.108 So too, Republican state legislatures have responded to failed congressional attempts
to repeal the Affordable Care Act by passing numerous laws seeking to
limit implementation of the Act109 — efforts that Republican members
of Congress have goaded.110
As the stem cell debate during the Bush years anticipated, abortion
remains one of the sharpest sites of partisan federal conflict. In 2011,
for instance, Republicans in the House voted to cut off federal funding
for Planned Parenthood because the organization provides abortion
services.111 After the Democratic Senate rejected the rider, state legislatures took up the cause. In 2011 and 2012, six states with Republican legislatures passed laws cutting Planned Parenthood’s funding,112
and two states took similar executive action on party lines.113 While
Republican state legislators have relied on their autonomous lawmaking powers to defund Planned Parenthood, their actions are continuous
with federal efforts. As the leader of Americans United for Life noted,
the House’s vote to defund Planned Parenthood “both reflected similar
actions in the states and encouraged similar state actions.”114
Whether the states are taking up the Republican or Democratic
policy agenda, their laws have a variety of different aims vis-à-vis the
federal government. Sometimes they seek to push the federal govern–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
108 See Voter Identification Requirements, NAT’L CONF. ST. LEGISLATURES, http://www.ncsl
.org/legislatures-elections/elections/voter-id.aspx#Legislation (last visited Nov. 24, 2013).
109 State Legislation and Actions Challenging Certain Health Reforms, NAT’L CONF. ST. LEGISLATURES, http://www.ncsl.org/issues-research/health/state-laws-and-actions-challenging-ppaca
.aspx#2011_bills (last updated Oct. 2013).
110 E.g., Letter from Senator Jim DeMint et al. to the Nat’l Governors Ass’n (June 29,
2012), available at http://bachmann.house.gov/sites/bachmann.house.gov/files/UploadedFiles
/congresslettertonga_070212.pdf (urging governors to resist setting up health insurance exchanges
in their states to “assist . . . Congress to repeal this violation” (emphasis omitted)). The conservative American Legislative Exchange Council (ALEC) has drafted model legislation for the states.
See, e.g., Press Release, Am. Legislative Exch. Council, State Legislators Last Line of Defense
Against ObamaCare (Mar. 22, 2010), available at http://www.prnewswire.com/news-releases/state
-legislators-last-line-of-defense-against-obamacare-88817322.html.
111 Final Vote Results for Roll Call 93, OFFICE OF THE CLERK, U.S. HOUSE OF REPRESENTATIVES (Feb. 18, 2011, 2:13 PM), http://clerk.house.gov/evs/2011/roll093.xml. House Republicans voted in favor 230 to 7, while Democrats voted against 178 to 10. Id.
112 AMS. UNITED FOR LIFE, DEFENDING LIFE 2012, at 37–39 (2012) (discussing laws in Indiana, Kansas, Montana, North Carolina, Texas, and Wisconsin).
113 Republican Governor Chris Christie of New Jersey vetoed funding for Planned Parenthood
approved by the state’s Democratic legislature, id. at 38–39, while New Hampshire’s Republicancontrolled Executive Council rejected Planned Parenthood’s state contract, Jason McLure,
New Hampshire Planned Parenthood Stops Providing Birth Control, REUTERS, July 8, 2011,
available at http://www.reuters.com/article/2011/07/08/us-planned-parenthood-new-hampshire
-idUSTRE7675Z820110708.
114 For the Record: Charmaine Yoest: April 2012, NAT’L CONF. ST. LEGISLATURES, http://
www.ncsl.org/issues-research/health/for-the-record-charmaine-yoest-april-2012.aspx (last visited
Nov. 24, 2013).
2014]
PARTISAN FEDERALISM
1105
ment into action. Sometimes they keep issues in the national spotlight
that would have faded from public view when the minority party in
Congress could not enact legislation or even get it onto the floor, or
when the majority party had insufficient numbers to defeat a filibuster
or presidential veto. Sometimes they motivate other states to take similar actions, creating a sort of national law without Congress.115 What
unites these laws is that, while they rely on state autonomy in one
sense — the state’s ability to enact its own legislation — this is not autonomy as separation. States are using their lawmaking abilities to
take stands on national issues, working in direct cooperation with national figures who are not able to achieve their ends in Washington, or
more diffusely following contours of party agendas. Institutional isomorphism becomes a vehicle not for dual federalism but for statefederal interaction and contestation.
3. Administration: Uncooperative Federalism. — States also oppose federal policy from within federal schemes, pushing back against
federal policy using the authority conferred on them to carry out federal law. Party politics plays a critical role in motivating such uncooperative federalism.116
Sometimes states act uncooperatively by refusing to take part in
programs that the federal government has designed intending state
participation. Partisanship can trump even strong fiscal interests.
During the Bush Administration, Democratic states widely refused
funding for sex-education programs that required abstinence-only instruction.117 More recently, many Republican states have declined
grants to expand Medicaid or to set up their own health insurance exchanges pursuant to the Affordable Care Act.118
In other instances, partisanship leads states to tweak or generate
internal opposition to federal programs they administer. During Bill
Clinton’s Presidency, for example, Republican state governors including Tommy Thompson and John Engler used their role in administering federal welfare programs to push back against policies they re–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
115
116
See infra section III.A, pp. 1123–30.
On uncooperative federalism, see generally Bulman-Pozen & Gerken, supra note 51. On
uncooperative federalism with respect to national executive power in particular, see generally
Bulman-Pozen, Federalism as a Safeguard, supra note 56.
117 Alesha E. Doan & Deborah R. McFarlane, Saying No to Abstinence-Only Education: An
Analysis of State Decision-Making, 42 PUBLIUS 613 (2012) (finding that partisanship and ideology drove states’ rejection of abstinence-only funds).
118 See GOP Governors Reject ObamaCare Health Exchange Partnerships, supra note 79. See
generally Brian Galle, Federal Grants, State Decisions, 88 B.U. L. REV. 875 (2008) (exploring why
state officials decline federal grants); Sean Nicholson-Crotty, Leaving Money on the Table: Learning from Recent Refusals of Federal Grants in the American States, 42 PUBLIUS 449, 462 (2012)
(“Between 2009 and 2011, over 40 percent of Republican governors publicly rejected or refused to
apply for funds being offered by the Obama administration.”).
1106
HARVARD LAW REVIEW
[Vol. 127:1077
garded as cultivating dependency rather than work and marriage.119
These governors also leveraged their administrative know-how — and
their leadership of the Republican Governors Association — to work
with Republicans in Congress to devolve still more power to the
states.120 Their push to convert welfare into a block-grant program
was at once a push to devolve power to the states and a push to move
the substantive commitments of welfare policy in a Republican
direction.121
A decade later, the national debate about eligibility requirements
for the State Children’s Health Insurance Program (SCHIP) also had a
partisan-inflected federalism dimension. Taking advantage of the opportunity the statute had provided for states to create their own insurance schemes, Democratic state legislatures had significantly expanded
coverage — for instance, to certain adults and to children of families
with incomes at three times the poverty level.122 When SCHIP came
up for reauthorization in 2007, President Bush and congressional Republicans sought to impose federal restrictions on such state experimentation, while congressional Democrats argued vigorously for state
flexibility.123 As with welfare policy, a partisan debate about the substance of SCHIP played out in significant part as a question of national versus state control, although the partisan lines had switched. In
both instances, state actors seized on their administrative role to reshape federal policy, and they enjoyed the backing of partisan allies in
Congress. In both instances, partisanship was the motivating force,
but federalism was a critical currency.
With respect to immigration, state and federal actors have similarly
advanced different views, and different rhetoric, about state versus
federal power depending on which party holds the presidency. During
the Bush Administration, several blue states resisted aggressive enforcement of federal immigration law. Some prevented their law enforcement officers from carrying out federal immigration laws concern–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
119
See, e.g., MICHAEL B. KATZ, THE PRICE OF CITIZENSHIP 83–103 (2001); LEARNING
LEADERS (Carol S. Weissert ed., 2000); Bulman-Pozen & Gerken, supra note 51, at
1274–76.
120 See JOHN D. NUGENT, SAFEGUARDING FEDERALISM 146–47 (2009).
121 See Patty Edmonds, States Turn Values Rhetoric into Legislative Action, USA TODAY, Aug.
8, 1996, at A7 (“The states ‘have become very much activists in trying to reform social programs,
to . . . set a moral tone for our society,’ says Wisconsin Gov. Tommy Thompson, a Republican.”
(alteration in original)). While President Clinton ultimately signed the Republican House–
generated Personal Responsibility and Work Opportunity Act, he resisted other state attempts to
further devolve welfare policy in the service of Republican ends. See Garry Wills, The War Between the States . . . and Washington, N.Y. TIMES, July 5, 1998, § 6 (Magazine), at 26.
122 See Colleen M. Grogan & Elizabeth Rigby, Federalism, Partisan Politics, and Shifting Support for State Flexibility: The Case of the U.S. State Children’s Health Insurance Program, 39
PUBLIUS 47, 59, 61 (2009).
123 Id. at 60–62.
FROM
2014]
PARTISAN FEDERALISM
1107
ing unlawful presence,124 while certain Democratic state officials, including the Massachusetts and New York attorneys general, staged
confrontations with federal agencies around the rights of undocumented workers.125
During the Obama Administration, Republican-controlled states
have deployed their role as administrators of federal immigration law
to call for more aggressive enforcement.126 Arizona’s controversial S.B.
1070, for example, marshals state law in an effort to increase
immigration-related arrests and deportations. While the Supreme
Court held several provisions of the law preempted before they took effect,127 the litigation was notable both for bolstering uncooperative federalism as a means of resistance and for drawing partisan lines that cut
across the state-federal divide. First, the single challenged section of
the law that the Supreme Court upheld rested on a U.S. Code provision
giving states a role in carrying out federal law.128 While the federal
provision assumes federal-state “cooperation,” however, Arizona’s reliance on the provision is decidedly uncooperative with respect to the
Obama Administration: the state is using the power given to it within
a federal scheme to oppose the federal executive’s policy choices about
how that scheme is carried out.129 Second, partisanship again trumped
politicians’ state or federal office in shaping their positions on the law.
Republican state attorneys general argued in support of the state law,
while Democratic state attorneys general insisted that federal law
preempted Arizona’s scheme.130 Meanwhile, congressional Democrats
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
124 See, e.g., OR. REV. STAT. § 181.850 (2011); S.J. Res. 19, 59th Leg., Reg. Sess., 2005 Mont.
Laws 3042; N.M. Exec. Order. No. 2005-019 (2005), rescinded by N.M. Exec. Order No. 2011009 (2011).
125 Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. CHI. LEGAL F. 57, 63–
64. See generally Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567 (2008).
126 See generally Pratheepan Gulasekaram & S. Karthick Ramakrishnan, Immigration Federalism: A Reappraisal, 88 N.Y.U. L. REV. 2074 (2013) (providing a partisanship-based account of the
recent rise of subnational immigration policies). State rhetoric, at least, has insisted that the
Obama Administration has been lax in deporting individuals, though in fact it has deported more
people per year than any prior administration. See, e.g., Has Barack Obama Deported More People than Any Other President in U.S. History?, POLITIFACT, http://www.politifact.com/truth-o
-met er/st at emen ts/2012/a ug/ 10/ a merica n-pri ncipl es-a cti on/h as -b a rack -ob am a -dep orte d-m ore
-people-any-other-pr (last visited Nov. 24, 2013).
127 See Arizona v. United States, 132 S. Ct. 2492, 2510 (2012).
128 Id. at 2507–10.
129 See Bulman-Pozen, Federalism as a Safeguard, supra note 56, at 484–86.
130 See Brief of Amici Curiae State of Michigan and Fifteen Other States in Support of the Petitioners, Arizona, 132 S. Ct. 2492 (No. 11-182) (representing thirteen states with Republican attorneys general and two states, West Virginia and Wyoming, with Democratic attorneys general);
Brief for State of New York et al. as Amici Curiae in Support of Respondent, Arizona, 132 S. Ct.
2492 (No. 11-182) (representing eleven states with Democratic attorneys general). Five states with
Republican governors and legislatures — Alabama, Georgia, Indiana, South Carolina, and
Utah — also adopted copycat laws modeled on Arizona’s. See State Anti-Immigrant Laws,
1108
HARVARD LAW REVIEW
[Vol. 127:1077
argued that the law was preempted, while congressional Republicans
sided with Arizona.131 In contrast to the immigration federalism debate of the early 2000s, the immigration federalism debate of the 2010s
aligned Republicans with state power and Democrats with national
authority.132
* * *
Many state challenges of the type discussed in this section are effective, but a significant number fail in important ways. The Supreme
Court, for example, largely rejected state arguments against the Affordable Care Act and deemed most of Arizona’s immigration law
preempted, while lower courts have invalidated several laws seeking to
defund Planned Parenthood. For those focused solely on the shortterm effects on the federal government, such challenges may be of little
utility. But, as the next Part argues, even these challenges are important to federalism’s vitality because they help maintain individuals’
commitment to states as sites of opposition — a commitment that ultimately gives the states power to launch successful as well as failed
challenges and that connects individuals to the polity even when they
are alienated from the federal government.
II. PARTISAN IDENTIFICATION WITH STATES
Federalism critically depends not only on the relationship between
the state and federal governments, but also on the relationship of the
people to the states and the nation. For federalism to work, much doctrine and scholarship insists, the people must politically identify with
the states as well as the nation. Yet contemporary federalism scholars
are skeptical that most Americans have state-based identities. Countering arguments that the fifty states are discrete civil societies, these
scholars have suggested our political identity is national only.
This Part does not attempt to defend a notion of state identity as
such but instead argues that we may be missing a powerful form of
identification with states because our understanding of what consti–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
ACLU, https://www.aclu.org/immigrants-rights/state-anti-immigrant-laws (last visited Nov. 24,
2013).
131 Compare Amici Curiae Brief of Members of Congress and the Committee to Protect America’s Border in Support of Petitioners, Arizona, 132 S. Ct. 2492 (No. 11-182), with Amici Curiae
Brief of Members of Congress in Support of Respondent, Arizona, 132 S. Ct. 2492 (No. 11-182).
132 This partisan mapping followed not only from state action but also from the federal response to state action. While states have enacted both pro- and anti-immigrant laws during both
Democratic and Republican administrations, see infra section III.A, pp. 1123–30 (discussing state
diversity), the Bush Administration visibly attacked sanctuary jurisdictions, not anti-immigrant
laws, while the Obama Administration has visibly attacked anti-immigrant laws, not sanctuary
jurisdictions.
2014]
PARTISAN FEDERALISM
1109
tutes political identity is too rigid. Americans need not regard states as
distinctive civil societies or consistently prize their membership in the
state polity for states to be meaningful sites of identification. When we
expand our inquiry to encompass more fluid and contingent forms of
state identity, partisanship emerges as a key variable, a reason for individuals to channel loyalty and affiliation toward states rather than
toward the nation alone. After section II.A describes debates about
state identity, section II.B argues that partisanship is a powerful sociopolitical identification, and section II.C illustrates how states serve as
sites of partisan identification. Ultimately, a focus on partisanship
suggests that state-based identification may be shifting and partial —
and, perhaps paradoxically, a means of expressing national identity —
but nonetheless a significant buttress of American federalism.
A. Problems of Identity and Loyalty in American Federalism
An animating premise of much federalism doctrine and scholarship
is that states must command political loyalty and identity.133 For
many federations, state-based affiliations are understood as prior to
and necessitating federalism in the first instance. The point of federalism, on this view, is to accommodate diversity, to allow individuals
who are different from each other in some important respect to live together and yet apart.134 In other instances, commentators consider
state-based loyalty a means to distinct ends that federalism aspires to
guarantee. Federalism is said to preserve liberty, for example, by placing two governments in competition, but these two governments have
power to compete only insofar as individuals identify with both; individuals’ attachments to their states, in particular, hold centripetal forces in check.135 Such accounts are often agnostic about the sources of
state-based identity, recognizing that state borders may create, rather
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
133 See, e.g., FEELEY & RUBIN, supra note 5; RIKER, supra note 8, at 136 (“[F]ederalism is
maintained by the existence of dual citizen loyalties to the two levels of government.”); Sujit
Choudhry, Citizenship and Federations: Some Preliminary Reflections, in THE FEDERAL VISION 377, 387 (Kalypso Nicolaidis & Robert Howse eds., 2001) (“It is often asserted that the existence of divided or multiple allegiances is one of the defining features of federalism . . . .”); John
O. McGinnis, Reviving Tocqueville’s America: The Rehnquist Court’s Jurisprudence of Social Discovery, 90 CALIF. L. REV. 485, 525–26 (2002) (arguing that successful federalism requires “citizens’ emotional attachments to their states,” id. at 526).
134 See, e.g., Will Kymlicka, Federalism, Nationalism, and Multiculturalism, in THEORIES OF
FEDERALISM 269 (Dimitrios Karmis & Wayne Norman eds., 2005).
135 The classic account is Madison’s in The Federalist No. 45 and The Federalist No. 46. For a
contemporary account, see Jacob T. Levy, Federalism, Liberalism, and the Separation of Loyalties,
101 AM. POL. SCI. REV. 459 (2007). Cf. Gregory v. Ashcroft, 501 U.S. 452, 459 (1991) (arguing
that the federal and state governments will act as mutual restraints “only if both are credible”).
1110
HARVARD LAW REVIEW
[Vol. 127:1077
than simply reflect, political identities.136 But they, too, posit states as
necessary sites of identification.
What, then, generates state-based loyalties and identities in the
United States? The answer suggested for many polities — ethnically,
linguistically, or religiously identified communities — cannot be given.137 In its place, some of the staunchest defenders of American federalism cast the states themselves as diverse cultural communities. On
Daniel Elazar’s influential account, for instance, each state is a “distinct societ[y]”138 associated with a particular character and set of fundamental values.139 Thus, for Elazar and his many successors, state
borders may not map neatly onto race, language, religion, or the like,
but states themselves reflect different American ethnocultural identities.140 Instead of the Flemish and Walloons, we have Floridians and
Washingtonians.
But accounts that treat state identities as distinctive, deep-seated,
and fixed face a host of complications. Although the United States is
not a homogenous polity, American heterogeneity does not closely
track state borders. Today, individuals from Montana to Mississippi to
Maine can eat at the same restaurant chains, shop at the same stores,
read the same publications, and listen to the same music.141 And these
individuals in Montana, Mississippi, and Maine might be just one person: half of Americans age twenty-five and older do not live in their
state of birth, and more than a quarter of American adults have lived
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
136 See, e.g., Richard Briffault, “What About the ‘Ism’?” Normative and Formal Concerns in
Contemporary Federalism, 47 VAND. L. REV. 1303, 1306 (1994); Levy, supra note 135, at 475. One
recalls Samuel Beer’s quip: “Look at the map. It must make you wonder whether there could
have been a United States, if the rectangle had not been invented.” Samuel H. Beer, Federalism,
Nationalism, and Democracy in America, 72 AM. POL. SCI. REV. 9, 16 (1978).
137 By invoking these possibilities, I do not mean to endorse the idea that identity and loyalty
necessarily follow from territorial divisions mapped onto ethnocultural cleavages, nor to suggest
this is desirable. See, e.g., DONALD L. HOROWITZ, ETHNIC GROUPS IN CONFLICT 617–19
(1985) (noting benefits of ethnically heterogeneous federal units in certain circumstances).
138 Daniel J. Elazar, Foreword: The Moral Compass of State Constitutionalism, 30 RUTGERS
L.J. 849, 861 (1999).
139 ELAZAR, supra note 5, at 14–25, 109–12.
140 For simplicity’s sake, I am here counting as Elazar’s successors a broad array of scholars
ranging from Richard Briffault — who focuses on states’ fixed boundaries, territorial integrity,
and lawmaking capacity rather than inherent differences among their populations as underlying
their status as “relatively distinctive ‘civil societies’” — to Joel Lieske — who has drilled down
further on Elazar’s conception of state cultures. Briffault, supra note 136, at 1306 (quoting
ELAZAR, supra note 5, at 14–25); Joel Lieske, American State Cultures: Testing a New Measure
and Theory, 42 PUBLIUS 108 (2012); see also, e.g., Lynn A. Baker & Ernest A. Young, Federalism
and the Double Standard of Judicial Review, 51 DUKE L.J. 75, 150 n.335 (2001) (inviting skeptics
of state identity to come live in Texas for six months); Peter J. Spiro, The Citizenship Dilemma, 51
STAN. L. REV. 597, 621 n.120 (1999) (book review) (arguing that distinctive state-based identities
are on the rise).
141 See, e.g., JAMES A. GARDNER, INTERPRETING STATE CONSTITUTIONS 69–72 (2005);
SCHAPIRO, supra note 12, at 25–26.
2014]
PARTISAN FEDERALISM
1111
in three or more states.142 To the extent the states reflect cultural differences, regional rather than state distinctiveness is likely to be what
matters. And urban/rural cleavages may generate both intrastate division and interstate unity. Moreover, many of our major metropolitan
areas cross state lines. Are residents of Gary or Hammond culturally
identified with Indiana over Chicago?143 Even those commentators
who have attempted to trace distinct American cultures within the
United States have thus tended to find state borders both over- and
under-inclusive.144 Indeed, Elazar’s own moralistic-individualistictraditionalistic typology reveals significant intrastate differentiation
and interstate commonality.145
In light of these and other complications, most recent federalism
scholarship has rejected the notion of state identity altogether, at least
for the majority of states.146 In particularly strong terms, Malcolm
Feeley and Edward Rubin insist that because Americans do not identify with states, the United States cannot be said to have a federal system.147 In their view, federalism responds to divided political loyalties,
but “the American people . . . have a unified political identity. Not only do they identify themselves primarily as Americans, but they insist
on normative uniformity throughout the nation.”148 Jacob Levy similarly argues that “American federalism today may not be very effective” because “[c]leavages that cut across states are the rule.”149 With–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
142 See PING REN, U.S. CENSUS BUREAU, LIFETIME MOBILITY IN THE UNITED STATES:
2010, at 4 tbl.2 (2011); PEW RESEARCH CTR., AMERICAN MOBILITY: WHO MOVES? WHO
STAYS PUT? WHERE’S HOME? 13 (2008), available at http://pewsocialtrends.org/files/2010/10
/Movers-and-Stayers.pdf. A substantial percentage of Americans who move consider “home” a
place other than where they currently live. PEW RESEARCH CTR., supra, at 25 (finding that, of
U.S.-born adults who have lived in more than one community, thirty-eight percent say they consider home some place other than where they live now). For some thoughts on cross-state affiliation, see infra section III.B, pp. 1130–35.
143 Cf. Jerry Frug, Decentering Decentralization, 60 U. CHI. L. REV. 253, 320–30 (1993) (exploring individuals’ attachments to places other than their residences).
144 See, e.g., JAMES G. GIMPEL & JASON E. SCHUKNECHT, PATCHWORK NATION (2003);
COLIN WOODARD, AMERICAN NATIONS (2011).
145 See, e.g., ELAZAR, supra note 5, at 124–25.
146 Some scholars carve out states like Utah and Hawaii whose majorities can be identified by
a particular characteristic, such as ethnicity or religion, and Texas is often placed in a category of
its own. See, e.g., Levy, supra note 135, at 468.
147 See FEELEY & RUBIN, supra note 5; Edward L. Rubin & Malcolm Feeley, Federalism:
Some Notes on a National Neurosis, 41 UCLA L. REV. 903 (1994).
148 FEELEY & RUBIN, supra note 5, at 115.
149 Levy, supra note 135, at 468; see also Mark C. Gordon, Differing Paradigms, Similar Flaws:
Constructing a New Approach to Federalism in Congress and the Court, 14 YALE L. & POL’Y
REV. (SYMP. ISSUE) 187, 217 (1996) (arguing that the value of states today “lies not in their role
as a focus of citizen loyalty and identification, but rather in the fact that they do not play that
role”); Jacob T. Levy, Federalism and the New and Old Liberalisms, SOC. PHIL. & POL’Y, Jan.
2007, at 306, 316 (“[L]oyalty to states . . . has dwindled to almost nothing in most parts of the
United States.”).
1112
HARVARD LAW REVIEW
[Vol. 127:1077
out dismissing American federalism, other accounts similarly reject
the idea of state identification. Robert Schapiro argues that our polity
is a thoroughly national one and scholars should focus on how federalism works without succumbing to “an outdated focus on local variation” and “nostalgia for lost community.”150 Heather Gerken finds it
“odd” that we bother even to discuss whether Americans identify with
the states.151
In their persuasive debunking of essentialist conceptions, however,
these scholars risk throwing the baby out with the bathwater. They
undervalue how individuals may identify with states even if state
boundaries do not demarcate distinct ethnocultural communities. It is
possible, that is, to posit meaningful state identification without embracing what James Gardner calls “romantic subnationalism.”152 A
handful of scholars have indeed invoked thinner conceptions of state
identity. Most notably, Vicki Jackson argues that American federalism
promotes national accord because state-based civic identities crosscut
deeper-seated racial, ethnic, or religious identities.153 But what generates state civic identities?154
As the remainder of this Part explains, in the United States today,
partisanship motivates individuals to identify with and feel loyal to the
states as well as the nation in complicated and shifting but nonetheless
significant ways. Seeking to locate state identification in ways in
which the states are different from the nation may obscure how similarity undergirds identification. Individuals may identify with the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
150 SCHAPIRO, supra note 12, at 7; see id. at 16–30, 82–85; see also, e.g., James A. Gardner, The
Failed Discourse of State Constitutionalism, 90 MICH. L. REV. 761, 830 (1992) (noting “the general absence of public identification with the polity defined by the state”).
151 Gerken, supra note 4, at 16–17.
152 GARDNER, supra note 141, at 53 (capitalization omitted).
153 Jackson, supra note 71, at 2221–22, 2221 n.189. While Jackson emphasizes identities that
Americans do not associate with states, the crosscutting allegiances she champions follow from
individuals’ state-oriented “civic identities” that do not align with their more deeply felt identities.
Id. at 2221; see also Calabresi, supra note 18, at 769 (“[N]ationwide crosscutting cleavages make
American federalism stable because they give it a Madisonian plurality of interest groups, no one
of which is likely to terrorize the others on a permanent basis.”); Daniel B. Rodriguez, State Constitutional Failure, 2011 U. ILL. L. REV. 1243 (arguing that state constitutions can further statebased communities of interest that are contingent but nonetheless meaningful).
154 Some have read Jackson as agreeing with Elazar that the states are “integral communities of
value.” SCHAPIRO, supra note 12, at 88. Yet Jackson represents as similar to her account Mark
Gordon’s claim that American stability follows from the absence of state identification. I think it
most likely, then, that she has a thin conception of civic identity in mind. See, e.g., Jackson, supra
note 71, at 2222 (describing states as “useful loci toward which to direct political activism and
organizing”). My account may therefore be complementary to hers insofar as partisanship is a
mechanism that translates political activism into identification. Cf. Ernest A. Young, What Does
It Take to Make a Federal System? On Constitutional Entrenchment, Separate Spheres, and Identity, 45 TULSA L. REV. 831, 843 (2011) (book review) (suggesting that state identity might be revived by focusing on “critical political commitments” rather than distinctive cultural, ethnic, or
religious patterns).
2014]
PARTISAN FEDERALISM
1113
states not because they represent something essentially different from
the nation, but rather because they articulate competing visions of the
national will.155 Partisan identification with states thus underscores
the nationalism of American federalism — yet this is a nationalism in
which the states are not beside the point, as commentators like Feeley
and Rubin suggest, but are instead key players in national politics and
individuals’ understanding of themselves as Americans.
B. Partisanship as Identity
As an ever-growing body of social science work demonstrates, partisanship is a powerful political and social identification.156 Most
American adults understand themselves as Democrats or Republicans,
and even most self-proclaimed Independents process information and
take positions on issues in ways indistinguishable from their partisanidentified peers.157 Party identification is quite stable over time,158 and
it is much more than a series of discrete actions, such as votes for particular candidates. It colors how we process information and what we
believe about particular issues and fundamental questions alike.159 It
is, moreover, a social, as well as political, identification. As Donald
Green and his colleagues write, “[i]dentification with a political party
is analogous to identification with religious, class, or ethnic groups.”160
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
155 As Paul Kahn’s work on state constitutionalism has suggested in a related field, states represent multiple efforts to realize a common ideal of American governance. Paul W. Kahn, Commentary, Interpretation and Authority in State Constitutionalism, 106 HARV. L. REV. 1147, 1166
(1993); cf. GARDNER, supra note 141, at 122 (positing an interdependence of state and national
constitutionalism and suggesting that state power exists not only to ensure state self-government
but also “for the benefit of the people of the nation”).
156 See, e.g., GREEN ET AL., supra note 6; ROSENBLUM, supra note 6; Carsey & Layman, supra note 35.
157 Many Americans who call themselves Independents are “leaners,” see BRUCE E. KEITH ET
AL., THE MYTH OF THE INDEPENDENT VOTER 13 (1992) (internal quotation marks omitted),
and a still greater number have strong implicit Democratic or Republican leanings that shape
their political judgments in ways they do not expressly report, see Carlee Beth Hawkins & Brian
A. Nosek, Motivated Independence? Implicit Party Identity Predicts Political Judgments Among
Self-Proclaimed Independents, 38 PERSONALITY & SOC. PSYCHOL. BULL. 1437 (2012). It is
notable that these individuals refuse to visibly identify with a political party, but given that most
Americans are party-identified and most Independents are closet, or at least subconscious, partisans, I do not address that curiosity further here.
158 E.g., ROGERS M. SMITH, CIVIC IDEALS 493 (1997) (“Few findings in political science are
as heavily supported as the tenacity of party identification . . . .”). On the formation of partisan
identity, see supra notes 34–39 and accompanying text.
159 See, e.g., Bartels, supra note 37, at 117 (presenting evidence of partisan bias in political perception); Cohen, supra note 38 (finding that party identification shapes individuals’ views on social policies); Goren, supra note 36, at 894 (finding that party identification shapes individuals’
core political values, their “most abstract and enduring beliefs about society and public affairs”).
160 GREEN ET AL., supra note 6, at 78. Although this is not Green and his colleagues’ point, it
may be that these identities are similar not only because the former is more durable and meaningful to individuals than commonly assumed, but also because the latter is more fluid and contin-
1114
HARVARD LAW REVIEW
[Vol. 127:1077
This is not to say that partisanship follows from and expresses these
other social identities. While individuals may become partisans in part
by virtue of their membership in other social groups,161 party identification is not reducible to these other memberships.162 It is a distinct
social identity, serving, in psychological terms, as “part of an individual’s self-concept which derives from his knowledge of his membership
of a social group . . . together with the value and emotional significance attached to that membership.”163 Partisanship generates both
personal understandings and communal attachments.
Three related points about partisanship as a sociopolitical identity
bear particular emphasis. First, our sense of what it means to be an
American, our national identity, is mediated by partisanship. In the
words of two social psychologists, “Red and Blue have become distinct
ways of being ‘American.’”164 The Democratic and Republican parties
offer competing narratives about triumphs and challenges in all realms
of public life — the economic, the social, the moral.165 When they do
so successfully, their “normative vision also becomes part of the sense
of identity of their allegiants.”166 Democrats and Republicans thus
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
gent. A significant body of work has destabilized understandings of racial, ethnic, and religious
identities as given and fixed, rather than constructed and continuously negotiated, and has emphasized that ethnicity is better understood not as preceding and standing outside politics but
rather as being activated and mobilized by it. See, e.g., ROGERS BRUBAKER, ETHNICITY
WITHOUT GROUPS (2004). If purportedly strong forms of identity are weaker than often
assumed, however, then something that may not even seem to be an identity — partisanship —
may have a stronger force than often assumed. Without positing equivalence, it seems fair to
understand both ethnic and partisan identifications as not fixed but nonetheless quite powerful
once mobilized. If drawing on our assumptions about ethnicity helps us to understand the power
of partisanship, as Green and his colleagues would have it, it also seems that drawing on our
assumptions about partisanship could yield new thinking about federal polities divided along ethnic lines.
161 See supra note 34.
162 That said, there is a worrisome racialization of the parties underway in the United States.
See, e.g., Kerry L. Haynie & Candis S. Watts, Blacks and the Democratic Party: A Resilient Coalition, in NEW DIRECTIONS IN AMERICAN POLITICAL PARTIES 93, 105 (Jeffrey M. Stonecash
ed., 2010) (arguing that current trends could “leave us with one party that is overwhelmingly
white and one that is mostly made up of racial and ethnic minorities”).
163 Henri Tajfel, Social Categorization, Social Identity and Social Comparison, in DIFFERENTIATION BETWEEN SOCIAL GROUPS 61, 63 (Henri Tajfel ed., 1978) (emphasis omitted); see also, e.g., GREEN ET AL., supra note 6, at ix (“[P]arty identification is a genuine form of social identification.”); ROSENBLUM, supra note 6, at 343 (“[P]artisanship is a distinct identity, and
participation as a partisan is a form of identity politics.”).
164 Abraham M. Rutchick & Collette P. Eccleston, Ironic Effects of Invoking Common Ingroup
Identity, 32 BASIC & APPLIED SOC. PSYCHOL. 109, 111 (2010).
165 See ROSENBLUM, supra note 6, at 358–59.
166 SMITH, supra note 158, at 495; cf. Anthony D. Smith, Gastronomy or Geology? The Role of
Nationalism in the Reconstruction of Nations, 1 NATIONS & NATIONALISM 3, 19 (1995) (arguing that nationalists are “political archaeologists rediscovering and reinterpreting the communal
past in order to regenerate the community”).
2014]
PARTISAN FEDERALISM
1115
understand both the national polity and themselves as Americans
through the lens of partisanship.167
Second, as with all social identities, partisan identity generates, and
relies upon the existence of, both an in-group and an out-group. The
partisan in-group is a big one: for Democrats and Republicans alike, it
includes nearly half of the nation’s population. Largely for this reason,
commentators frequently discuss partisanship as a source of crosscutting identity in the United States.168 By cementing ties among a large
and diverse group of individuals who will never meet face to face, partisanship helps to foster a sense of national community.169 But the outgroup is just as important as the in-group, and just as substantial.
Precisely because it involves “the choice of comrades,”170 partisan identity “is defined in terms of ‘the other.’”171 Partisanship divides us even
as it unites us, and the division between Democrats and Republicans
has only grown more pronounced in recent decades. While polarization is most apparent among elected officials, it extends across the polity.172 Ideology and partisanship have become more aligned across the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
167 See, e.g., Zachary P. Hohman et al., Identity and Intergroup Leadership: Asymmetrical Political and National Identification in Response to Uncertainty, 9 SELF & IDENTITY 113, 122–23
(2010); Rutchick & Eccleston, supra note 164, at 113; cf. Penelope Sheets et al., God and Country:
The Partisan Psychology of the Presidency, Religion, and Nation, 32 POL. PSYCHOL. 459, 472
(2011) (finding that Democrats rated Obama as more “American” than McCain, while Republicans rated McCain as more “American” than Obama); Mary E. Stuckey, One Nation (Pretty
Darn) Divisible: National Identity in the 2004 Conventions, 8 RHETORIC & PUB. AFF. 639
(2005) (arguing that Democrats and Republicans presented very different visions of American national identity during the 2004 conventions). Partisanship is not, of course, the only mediating
variable in defining national identity. See, e.g., Jack Citrin et al., The Meaning of American National Identity: Patterns of Ethnic Conflict and Consensus, in SOCIAL IDENTITY, INTERGROUP
CONFLICT, AND CONFLICT REDUCTION 71, 84–86 (Richard D. Ashmore et al. eds., 2001) (suggesting that black and white Americans have different beliefs about what constitutes American
identity).
168 See, e.g., Ethan J. Leib & Christopher S. Elmendorf, Why Party Democrats Need Popular
Democracy and Popular Democrats Need Parties, 100 CALIF. L. REV. 69, 89 (2012) (arguing that
parties “allow Southerners and Northerners, rich and poor, whites and minorities, and Christians
and Muslims to feel that they are connected in a shared or overlapping political narrative”); see
also ROSENBLUM, supra note 6, at 356–57; cf. Jackson, supra note 71, at 2221–23 (discussing federalism in similar terms).
169 Cf. BENEDICT ANDERSON, IMAGINED COMMUNITIES 6–7 (rev. ed. 2006) (positing nations as imagined communities because “the members of even the smallest nation will never know
most of their fellow-members, meet them, or even hear of them, yet in the minds of each lives the
image of their communion,” id. at 6, and as imagined communities because “the nation is always
conceived as a deep, horizontal comradeship,” id. at 7).
170 WALZER, supra note 34, at 128 (internal quotation marks omitted).
171 ROSENBLUM, supra note 6, at 365.
172 Even those who dispute mass polarization agree that liberals and conservatives have increasingly been “‘sorting’ . . . into the ‘correct’ parties.” MORRIS P. FIORINA ET AL., CULTURE
WAR?, at xiii (3d ed. 2011); see also id. at 9, 61–69. But there is, in addition, evidence of polarization among the electorate. For instance, while Fiorina argues that Americans are not divided on
abortion because most Americans believe abortion should be available in some but not all cases,
eighty-eight percent of active Democrats who care about abortion consider themselves pro-choice,
1116
HARVARD LAW REVIEW
[Vol. 127:1077
electorate, and the more Americans are engaged in the political process, the more polarized they are; the more they care about divisive issues, like abortion, same-sex marriage, and health care, the more polarized they are.173 Especially as Americans increasingly associate only
with fellow partisans, the line between the partisan in-group and outgroup breeds mutual suspicion, not just a friendly contest in evennumbered years.174
Third, many political activities are fundamentally acts of identification. When Americans vote, work for campaigns, and otherwise engage politically, they seek not only to achieve particular policy outcomes, but also to support their “team.”175 In reaffirming their
partisan group, Americans also reaffirm their personal identity and
belonging in a political community. But this makes the stakes of elections particularly high. Losing the presidency, especially, may mean
not only living under policies one does not favor, but also a deeper
sense of alienation that may threaten the security of our national identity, our feelings of belonging to and affinity with the nation.176
C. Identifying with States
Consider, to make that last point a little more concrete, the secession talk that followed President Obama’s reelection. Texas led the
charge. As a petition asking permission for the Lone Star State to
withdraw from the United States gathered signatures,177 “Secede”
bumper stickers started selling like hotcakes, and a 2014 gubernatorial
candidate changed his middle name to “SECEDE.”178 While the fever
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
while eighty-four percent of active Republicans who care about abortion consider themselves prolife. ABRAMOWITZ, supra note 26, at 73; see also Layman et al., supra note 12, at 89–90.
173 ABRAMOWITZ, supra note 26, at 8; see also Erikson et al., supra note 28.
174 See, e.g., BILL BISHOP WITH ROBERT G. CUSHING, THE BIG SORT 14 (2008).
175 GREEN ET AL., supra note 6, at 83, 219; see also id. at 206 (“Elections affirm and empower
the social groups that comprise the winning party. . . . [E]lections represent more than simply a
competition between candidates and rival platforms. Elections are also forums for intergroup
competition.”).
176 See, e.g., CHRISTOPHER J. ANDERSON ET AL., LOSERS’ CONSENT 82–83 (2005) (showing that the loss of a presidential election has a pronounced effect on partisans’ trust in government); Hohman et al., supra note 167, at 122–23 (finding that Democrats disidentified from the
nation when asked to read a speech by Republican President George W. Bush that made them
feel uncertain, while Republicans identified more strongly with the nation under the same condition); cf. Rutchick & Eccleston, supra note 164, at 115 (showing that being encouraged by a member of the opposing party to think about national identity emphasizes partisan differences).
177 Peacefully Grant the State of Texas to Withdraw from the United States of America and
Create Its Own NEW Government, WE THE PEOPLE (Nov. 9, 2012), https://petitions.whitehouse
.g ov /p e t it i on/ p e a ce fu ll y - gr an t -s t a te - t e x as - wi th dr a w -u ni t e d- s t a tes - am er ic a - an d -c re a te - i ts - o w n
-new-government/BmdWCP8B.
178 Manny Fernandez, With Stickers, a Petition and Even a Middle Name, Secession Fever
Hits Texas, N.Y. TIMES, Nov. 24, 2012, at A12.
2014]
PARTISAN FEDERALISM
1117
ran hottest in Texas, residents of other red states including Alabama,
Georgia, Louisiana, and Tennessee also evinced secessionist ambitions.179
Whether one regards such activity as tragic, comic, or tragicomic,180 it gestures toward something important about the relationship
among partisanship, federalism, and political identity. Note that when
Republican President Bush won reelection, there was no talk of Texas
seceding. There were, though, Democrats across the country who
made the case for joining their states to Canada.181 Note, too, that
with a Democratic President’s reelection, petition signatories and
bumper-sticker bearers are not turning their backs on government altogether or focusing on emigration as an individual matter. Instead,
they are looking to the states. Eight years ago, after President Bush
won reelection, it was Democrats who felt alienated from the federal
government and, in looking to “secede emotionally,” focused on a different group of states.182
In short, such activity illustrates how states function as sites of partisan identification.183 When one’s party holds power at the national
level, states may seem relatively unimportant, but when the other party takes over, they become salient. Federalism matters both for furthering policy ends and for anchoring political identity. While secession is a noteworthy trope, the actions that states and their inhabitants
take while remaining squarely within the Union are more powerful
than rhetoric. When President Bush held office, Democrats sought to
protect same-sex marriage, provide safe harbors for undocumented
immigrants, and expand health care at the state level. With President
Obama in office, Republicans are working to curtail same-sex marriage, limit unlawful immigration, and hinder the implementation of
the Affordable Care Act at the state level.184
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
179 See Alexandra Jaffe, White House Responds to Secession Petitions, Calls for Unity Instead,
THE HILL (Jan. 12, 2013, 3:01 PM), http://thehill.com/blogs/blog-briefing-room/news/276817
-white-house-responds-to-secession-petitions. Meanwhile blue cities like Austin counter-petitioned
to secede from these red states and remain a part of the Union. See Richard Whittaker, Dear
Obama, If Texas Secedes, Can We Stay with You?, AUSTIN CHRON. (Nov. 14, 2012, 11:26 AM),
http://www.austinchronicle.com/blogs/news/2012-11-14/dear-obama-if-texas-secedes-can-we-stay
-with-you.
180 Compare, e.g., FEELEY & RUBIN, supra note 5, at 39 (“[F]ederalism is connected with the
tragic aspect of politics.”), with Fernandez, supra note 178 (noting that Texas’s secession talk provides “comic relief” for some).
181 See, e.g., ANDREW GELMAN ET AL., RED STATE, BLUE STATE, RICH STATE, POOR
STATE 112 fig.8.1 (2008) (reprinting a “widely circulated” cartoon map showing the “United
States of Canada” and “Jesusland”).
182 Franklin Foer, Essay, The Joy of Federalism, N.Y. TIMES, Mar. 6, 2005, at F12. Foer argues that liberal federalists turned to the states to obtain “psychic relief from the alienation” they
felt upon President Bush’s reelection. Id.
183 For empirical evidence supporting this assertion, see infra notes 193–99 and accompanying text.
184 See supra section I.B, pp. 1096–108.
1118
HARVARD LAW REVIEW
[Vol. 127:1077
Running still deeper, when one’s party is out of power at the national level, federalism offers an institutional framework for partisan
identification.185 Americans who feel alienated from the national government can turn to the states and know that there are government institutions controlled by their team.186 In Feeley and Rubin’s terms,
when Americans are alienated from the national government because
the other party is in control, federalism enables them to “divide loyalty
and rechannel action” and motivates them to remain involved in the
political arena.187 The states are not, for these Americans, something
different in kind from the federal government; instead, they represent
the “real” America at a time when the federal government fails to do
so.188 As a different popular bumper sticker — the one sold in Massachusetts after President Nixon was reelected with the Electoral College
votes of every other state — put it, “Nixon 49, America 1.” This rendering captures a more pervasive phenomenon: on partisan grounds,
states become stand-ins for the nation.
Partisan state identification thus does not inhere in something categorically distinctive about the states vis-à-vis the federal government.
Instead, it follows from their shared ability to represent the political
parties — but the divergence in how they do so at any given time.
The significance of partisanship to state identification suggests a different read on a worry often noted in legal and political science commentary: that voters rely on their national partisan preferences in state
elections.189 V.O. Key’s quip that “[t]he governmental system may be
federal but the voter in the polling booth usually is not”190 and David
Schleicher’s more recent work on “mismatch,”191 among other ac–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
185 Despite suggestions that Americans may identify differently with the political parties at the
state and national levels, surveys show almost no discrepancy between state and national party
identification. GREEN ET AL., supra note 6, at 44–46.
186 See ANDERSON ET AL., supra note 176, at 138–39 (arguing that electoral losers on the central level in a federal system are more satisfied than losers in unitary systems because they can
win in states); GREEN ET AL., supra note 6, at 219 (emphasizing “partisans’ sense that they are
part of a team”).
187 FEELEY & RUBIN, supra note 5, at 15.
188 Cf. Mark Tushnet, Comment, What Then Is the American?, 38 ARIZ. L. REV. 873, 877
(1996) (suggesting that state-based identifications are often rejections of alternative identities associated with other states and thus serve as assertions “of a desired alternative universalist culture”).
189 See, e.g., DUANE LOCKARD, THE POLITICS OF STATE AND LOCAL GOVERNMENT 165
(2d ed. 1969); Thomas M. Carsey & Gerald C. Wright, State and National Factors in Gubernatorial and Senatorial Elections, 42 AM. J. POL. SCI. 994, 1001 (1998); Christopher S. Elmendorf &
David Schleicher, Informing Consent: Voter Ignorance, Political Parties, and Election Law, 2013
U. ILL. L. REV. 363, 393–408; Steven Michael Rogers, Accountability in a Federal System (Sept.
2013) (unpublished Ph.D. dissertation, Princeton University), available at http://dataspace
.princeton.edu/jspui/bitstream/88435/dsp01m326m185z/1/Rogers_princeton_0181D_10709.pdf.
190 V.O. KEY, JR., AMERICAN STATE POLITICS 33 (1956).
191 See, e.g., David Schleicher, From Here All-the-Way-Down, or How to Write a Festschrift
Piece, 48 TULSA L. REV. 401 (2013); David Schleicher, Why Is There No Partisan Competition in
2014]
PARTISAN FEDERALISM
1119
counts, might seem to furnish powerful evidence for Feeley and
Rubin’s claim that state identification is illusory and our federalism
vestigial: If Americans do not conceptualize state and national governance as distinct or attend to unique currents of state politics, how can
we say they identify with the states?
But the very fact that states are fungible in voters’ minds with the
nation may make them powerful independent sites of identification.
Key’s “nonfederal” voters pose a challenge to views of state identity
grounded in ethnocultural uniqueness, but they undergird partisan
federalism. Given the role of the states in staging partisan competition, individuals may reasonably regard state elections as outlets for
their national political preferences.192 Moreover, insofar as political
activity is driven by a broader desire to support one’s partisan team,
state as well as federal elections enable Americans to reaffirm both
their political group and their own identities. And the states may loom
particularly large in these individuals’ minds when their party is out of
power at the national level.
It is not surprising, then, that polls on Americans’ views of federalism show that support for state and federal governments varies depending on which party holds office. When Democrats control the
federal government, for instance, Republicans view the states much
more favorably — but only when Republicans are in charge at the
state level.193 Indeed, partisanship drives whether Americans blame
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
City Council Elections?: The Role of Election Law, 23 J.L. & POL. 419 (2007); see also Elmendorf
& Schleicher, supra note 189. Schleicher argues that the political parties are national coalitions
that do not compete for local voters based on issues specific to state and local government, yet
voters nonetheless rely on their national partisan preferences in casting state and local ballots,
creating what he calls a “mismatch problem.”
192 See generally supra Part I, pp. 1082–108. In other words, voters are not necessarily
“[o]blivious” or “confused” if they base their state-level votes on the parties’ national positions.
Elmendorf & Schleicher, supra note 189, at 368. They may be responding to the states’ vital role
in national partisan conflict. I certainly don’t mean that no voters are oblivious or confused.
Elmendorf, Schleicher, and others are quite persuasive about voter apathy and ignorance. But
while apathetic and ignorant voters may be a democratic problem, they are not necessarily a federalism problem in particular. So too, I don’t mean to deny that there are state-specific political
questions that voter attention to national currents may elide. My point is the narrower one that
voters’ focus on national questions is not incompatible with federalism even as it does not capture
all of federalism’s dimensions. Indeed, if voters instead focused only on state-specific issues, they
also would be missing key aspects of our federalism.
193 PEW RESEARCH CTR., GROWING GAP IN FAVORABLE VIEWS OF FEDERAL, STATE
GOVERNMENTS 2–3 (2012), available at http://www.people-press.org/files/legacy-pdf/4-26-12
%20Govt%20Favorability.pdf (showing Republican support for the federal government declining
from 53% to 20% with the presidency changing hands from Republican Bush to Democratic
Obama, and Republican support for state government standing at 70% when Republicans control
a given state but at only 33% when Democrats do so); PEW RESEARCH CTR., STATE GOVERNMENTS VIEWED FAVORABLY AS FEDERAL RATING HITS NEW LOW 2–3 (2013), available at
http://www.people-press.org/files/legacy-pdf/4-15-2013%20Government%20Release.pdf (showing
Republican support for the federal government declining further to 13%, and Republican support
1120
HARVARD LAW REVIEW
[Vol. 127:1077
their state governor or the President for economic problems.194 So too,
individuals’ beliefs about whether the state or federal government is
the proper government to “run . . . things” depend on which party is in
control at both levels.195 Particularly for Democrats, state autonomy is
much more attractive when a Republican president holds office.196 In
the words of one commentator, Americans are “prone to vary their
support for different levels of government depending on the congruence between officials in power and their own partisanship.”197
While such partisan identification with states is contingent, it is
not, in this respect, different from other forms of identification, as illuminated by social psychological work on social identity threat.
Michael Hogg and others have shown that one way group members of
all kinds respond to threat is to disidentify with the superordinate
group and identify more strongly at a subgroup level.198 Multiple social categorization is most often studied with respect to social identities
such as race, ethnicity, and religion, but it has implications for nationalism, federalism, and partisanship as well. Democrats’ national identity is threatened when Republicans control the federal government,
and vice versa; their prototype of “American” is destabilized, and they
may question their membership in the national group. Hogg and his
colleagues, for example, found that Democrats’ national identification
was diminished after they read a speech by Republican President Bush
and were asked to focus on those aspects of the speech that made them
feel uncertain. Republicans’ national identification was enhanced un–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
at 71% for Republican-led states but 30% for Democratic-led states); see also J. Wesley Leckrone,
Federalism and Public Opinion, AM. PARTNERSHIP (June 15, 2012), http://
theamericanpartnership.com/2012/06/15/federalism-and-public-opinion (“Following previous public opinion polling, there is a partisan divide on which level of government is viewed more favorably. Satisfaction is related to congruence between individual partisan affiliation and the partisan
composition of the level of government.”).
194 Adam R. Brown, Are Governors Responsible for the State Economy? Partisanship, Blame,
and Divided Federalism, 72 J. POL. 605 (2010).
195 PEW RESEARCH CTR., PARTISAN POLARIZATION SURGES IN BUSH, OBAMA YEARS 53
(2012), available at http://www.people-press.org/files/legacy-pdf/06-04-12%20Values%20Release.pdf.
196 During the Reagan and second Bush Presidencies (in 1987 and 2007), more than seventy
percent of Democrats agreed that “[t]he federal government should run only those things that
cannot be run at the local level.” Id. During the Obama Presidency, Democrats’ support for this
statement dropped by nearly twenty points. Id. While Republicans are generally more supportive of local governance, their support varies according to party control as well. See id.; cf.
Richard L. Cole & John Kincaid, Public Opinion on U.S. Federal and Intergovernmental Issues in
2006: Continuity and Change, 36 PUBLIUS 443, 455 (2006) (showing that under a Republican
President, 78.2% of Republicans, but only 37.4% of Democrats, had a “great deal” or “fair
amount” of trust in the federal government).
197 Leckrone, supra note 193. For thoughts on the individual whose party is out of power both
at the national level and in her state, see infra section III.B, pp. 1130–35.
198 Michael A. Hogg & Matthew J. Hornsey, Self-Concept Threat and Multiple Categorization
Within Groups, in MULTIPLE SOCIAL CATEGORIZATION 112, 120 (Richard J. Crisp & Miles
Hewstone eds., 2006).
2014]
PARTISAN FEDERALISM
1121
der the same conditions.199 States are, for Americans whose national
identity is threatened, a readily available subgroup with which to politically identify. Even for those who signed Texas’s secession petition,
it seems, state identification does not require actual departure from the
United States. Instead, the possibility of state identification mitigates
the threat to national identity. The secession petition performs the solution to the problem it diagnoses.
As this further suggests, Americans who experience a partisanbased threat to their national identity may identify with their state as a
way of retaining a sense of belonging to the national group. Hogg and
his colleagues note that if a superordinate group values diversity, identifying with a subgroup need not yield schism.200 Federalism renders
diversity a defining structural feature of the United States.201 Because
being an American necessarily means belonging to a state as well as
national polity, identification with the state may be at once oppositional vis-à-vis the nation and a mediated way of identifying with the nation even in the face of partisan threat.202 In this sense, partisanship
adds a motivational, individually oriented element to accounts that
cast difference and discord as potentially integrative aspects of national democracy.203 In contrast to Charles Fried’s pithy suggestion that
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
199 Hohman et al., supra note 167. Hogg and his colleagues summarize one implication of their
study as follows:
Democrats do not view the president as representing their party subgroup or wider ideological viewpoint, and so they will resolve their uncertainty by distancing themselves
from nation and from the president and identifying with their party. In contrast, Republicans view the president as representing their party and their ideological viewpoint, so
they will resolve their uncertainty by identifying strongly with the President and with
both nation and party.
Id. at 122–23.
200 See Hogg & Hornsey, supra note 198, at 128–29. In other words, entitativity need not be
homogeneity; a group may embrace internal diversity as part of its distinctive identity.
201 There are other ways in which the United States is defined by diversity and pluralism, but
federalism is the governance structure that evidences this commitment, even as it does not map
onto other forms of diversity. Cf. Tushnet, supra note 188, at 876 (“Federalism has its attractions
as a principle of government almost entirely because it provides an almost unassailable base for
value-pluralism.”). See generally Juan J. Linz, Democracy, Multinationalism and Federalism, in
DEMOKRATIE IN OST UND WEST 382, 394 (Wolfgang Merkel & Andreas Busch eds., 1999) (“A
multinational state has to be based on pluralism, on the recognition of the value of diversity, rather than just on an acceptance of the plurality of the society as a fact.”).
202 Cf. MORTON GRODZINS, THE LOYAL AND THE DISLOYAL 40 (1956) (arguing that
nonnational loyalties not only compete with national loyalty but also promote and strengthen national loyalty).
203 See, e.g., ROBERT F. NAGEL, THE IMPLOSION OF AMERICAN FEDERALISM 76–77 (2001);
Gerken, supra note 4, at 9–10; cf. Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest,
Ideology, and Innovation, 22 WM. & MARY L. REV. 639 (1981); Robert M. Cover & T. Alexander
Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 YALE L.J. 1035 (1977).
1122
HARVARD LAW REVIEW
[Vol. 127:1077
“[i]f we became more Virginian, we would be less American,”204 this
understanding casts becoming more Virginian as a way of being more
American: When one’s national identity is threatened by partisan division, states are a site of identification that admits of both immediate
opposition and higher-order allegiance to the nation. Americans can
affiliate with states governed by their political party as a means of engaging with national politics rather than turning away from it. And
partisan identification always holds open the future prospect of identifying more strongly with the national government than the state.
Ultimately, partisanship underscores both the possibility and the
significance of a fluid form of state identification. Loyalty to the states
need not, on this view, be primordial, stable, or felt equally by the entire population. Taking partisanship as a primary mechanism of statebased identification suggests that at any given time only a subset of
the population will be focused on the states and that the members of
this subset will change over time depending on national political developments. But some individuals will always direct affinity and loyalty toward the states, and most politically engaged Americans should
at some point find themselves among these individuals.
III. HORIZONTAL NATIONALISM
If partisan federalism involves political actors’ use of the state and
federal governments to wage competition between the political parties,
and individuals’ attendant identification with the states, this Article
has thus far advanced a top-down, vertical conception of the phenomenon. Partisan competition, Part I suggested, involves lines drawn by
national party politics and transmitted to the states. State-based identification, Part II suggested, follows from alienation from the federal
government, as Americans’ political allegiances shift from the nation
to their states of residence. This Part complicates both claims by
bringing additional possibilities inherent in federal diversity into view.
Supplementing the vertical and top-down with the horizontal and
bottom-up, I argue that contemporary American federalism involves
slippage between state and federal authority and the prospect of individual affiliation with a variety of states.
Section III.A elaborates on Part I, noting how federalism shapes
and bolsters our political parties, and not just the reverse. Taking “the
national” to be formulated through both state and federal politics, this
section argues that states can serve as sites of national political contest
without forfeiting — even if they complicate understandings of — the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
204 Charles Fried, The Supreme Court, 1994 Term — Foreword: Revolutions?, 109 HARV. L.
REV. 13, 13 (1995); cf. RIKER, supra note 8, at 104–05 (suggesting that individuals choose between
state and national identification).
2014]
PARTISAN FEDERALISM
1123
particularity and pluralism for which we value the local. Section III.B
elaborates on Part II, suggesting that insofar as partisanship motivates
state-based identification, individuals may meaningfully affiliate
with states in which they do not reside. The states are different from
both the federal government and each other, but they participate in
controversies that are national in scope on behalf of the nation’s people at large.
A. Federalism as a Safeguard of Parties
By motivating both state-federal contestation and individual identification with the states, partisanship serves federalism. But if our two
political parties help perpetuate American federalism, the reverse is also true: federalism helps perpetuate the Democratic and Republican
parties. The coexistence of fifty-one governments means that neither
party is ever wholly out of power and that each party’s internal diversity may be expressed in governance decisions. In a time of party polarization, federalism bounds the loss of political losers. In a time of
party cohesion, federalism means there is still some play in each party’s joints.
1. Keeping the Losing Side Alive. — As others have noted, the
United States’ federal structure helps each party survive when it is out
of power at the national level.205 When Republicans rule in Washington, Democrats can build a record in state capitals, positioning themselves to regain federal power, and vice versa.206 State politicians have
a ready springboard into national office; many of our presidents have
come to the White House from the governor’s mansion.207
But the states are not merely “refueling stations”208 that allow parties to establish their bona fides before returning to the national stage.
State governance is, as I have argued, itself a means of participating in
national partisan politics. The coexistence of state and federal governments ensures that the party out of power in Washington may
continue to participate in national politics not only through minority
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
205 See, e.g., DAVID L. SHAPIRO, FEDERALISM: A DIALOGUE 115 (1995) (describing states as
“refueling stations” for the party out of power at the national level); Akhil Reed Amar, Some New
World Lessons for the Old World, 58 U. CHI. L. REV. 483, 504 (1991) (“[S]tates furnish opponents
of national policy with an opportunity to secure actual hands-on experience running government,
thereby strengthening their credibility as qualified candidates in the next set of national elections.”); Merritt, supra note 43, at 7 (“Political parties that are out of power on the federal level
can maintain their constituencies in the states.”); Ernest A. Young, The Rehnquist Court’s Two
Federalisms, 83 TEX. L. REV. 1, 60–61 (2004) (“Because the loyal opposition can not only oppose
but actually govern at the state level, the opposition party can develop a track record of success
that enhances its prospects in subsequent national elections.”).
206 See, e.g., Amar, supra note 205, at 504; Young, supra note 205, at 60–61.
207 Recent examples include George W. Bush, Bill Clinton, Ronald Reagan, and Jimmy Carter.
Barack Obama got his start as a state legislator.
208 SHAPIRO, supra note 205, at 115.
1124
HARVARD LAW REVIEW
[Vol. 127:1077
opposition in Congress but also through affirmative acts of state
governance.209
Moreover, just as partisanship bolsters federalism by making
Americans invested in states,210 federalism bolsters partisanship by
providing infrastructure for partisan allegiance. Nancy Rosenblum’s
defense of partisanship as “the political identity of representative democracy” argues that partisanship furnishes the comfort of solidarity
to political losers and the knowledge of contingency and temporariness
to political winners and losers alike.211 States provide an institutional
mechanism for partisanship to do this work.212 Federalism enables
party actors to keep the “losing side alive” by carrying out their party
platform through state governments.213 So too, federalism means that
partisans on the losing side of a national election need not see their
“minority status as irreversible” in part because they are not a minority
everywhere.214 Federalism helps make visible and concrete that neither party speaks for the whole, and it ensures that there are, at all
times, multiple government fora for partisan affiliation.
2. States as Laboratories of Partisan Politics. — These multiple
government fora point to a second way federalism serves the political
parties: it offers scope for intraparty, as well as interparty, competition
and variation. The Democratic and Republican parties look strikingly
uniform throughout the country compared to their historical incarnations.215 Yet if it is an overstatement today to characterize our twoparty system as “more like a hundred-party system,”216 there nonetheless remain disagreements about policies and priorities within each
party. Federalism makes it easier for the parties to accommodate such
internal diversity, whether or not it is ultimately rooted in differences
between the states as such. Even without regional parties,217 that is,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
209
210
211
See supra Part I, pp. 1082–108.
See supra Part II, pp. 1108–22.
ROSENBLUM, supra note 6, at 363 (“[U]nlike minorities in other arenas of majority decision
making, partisans do not see minority status as irreversible. . . . ‘Elections are not followed by
waves of suicide.’ Partisans keep the losing side alive, in public view . . . .” (footnote omitted)
(quoting E.E. SCHATTSCHNEIDER, PARTY GOVERNMENT 91 (Greenwood Press 1977) (1942))).
212 Cf. id. at 458 (suggesting “institutional arrangements” as one area for future research).
213 Id. at 363.
214 Id.; see also ANDERSON ET AL., supra note 176, at 138 (considering the “dispersion of the
effects of winning and losing across different levels of government in the United States”).
215 See, e.g., ABRAMOWITZ, supra note 26, at 4; ALDRICH, supra note 12, at 308; Erikson et
al., supra note 28, at 238, 246.
216 Nelson W. Polsby, The American Party System, in NEW FEDERALIST PAPERS 37, 40 (Alan
Brinkley et al. eds., 1997).
217 See generally Wolfgang Renzsch, Bifurcated and Integrated Parties in Parliamentary Federations: The Canadian and German Cases, in POLITICAL PARTIES AND FEDERALISM: AN INTERNATIONAL COMPARISON 11 (Rudolf Hrbek ed., 2004) (comparing Canada’s regional parties
to Germany’s integrated parties).
2014]
PARTISAN FEDERALISM
1125
federalism renders the parties more supple in shaping and advancing
their agendas and in attracting and maintaining individuals’ loyalty.
Return, for instance, to the examples of state-federal contestation in
Part I. The main axis of conflict is interpartisan: working through
both the states and the federal government, Democrats and Republicans fight over health care, same-sex marriage, abortion, global warming, stem cell research, welfare, and immigration. But there are finergrained intrapartisan debates with respect to these issues as well.
While the most visible conflicts are spurred by states governed by the
party out of power in Washington, states governed by the party in
power in Washington also offer opposing views of that party’s position.
As Arizona and copycat red states attacked President Obama’s Democratic administration on immigration, Massachusetts, New York, and
Illinois engaged in uncooperative federalism from the left, resisting the
administration’s Secure Communities program.218 As the Republican
Governor of Wisconsin fought with President Clinton’s Democratic
administration about the contours of welfare, the Democratic Governor of Washington was attempting to push existing welfare policy in a
more liberal direction.219 As blue states encouraged embryonic stem
cell research in the face of Republican President Bush’s federal ban,
Republican state actors who were aligned with business interests dissented from the Christian conservative position adopted by the President.220 Intraparty disputes about abortion, environmental protection
measures, and other controversial issues also play out in the states,
even as they are frequently overshadowed by interparty disputes.
Perhaps more important than offering platforms for outright
intrapartisan conflict, the states offer platforms for a greater variety of
party positions to take root. Even a party that controls the presidency
and Congress will only accomplish, and attempt to accomplish, so
much at the national level. Partisan obstruction generates substantial
gridlock even in periods of unified government. Floor time and other
temporal constraints limit which proposals get attention. Federal politicians lack interest in or appetite for taking on a host of issues. By
multiplying sites of governance, states enable a greater number of partisan positions to be advanced, and to be formulated in the first place.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
218 See, e.g., Julia Preston, States Resisting Program Central to Obama’s Immigration Strategy,
N.Y. TIMES, May 6, 2011, at A18; Elise Foley, New York Quits Secure Communities Immigration
Enforcement Program, Andrew Cuomo Announces, HUFFINGTON POST (June 1, 2011, 6:20 PM),
http://www.huffingtonpost.com/2011/06/01/new-york-quits-secure-communities_n_869969.html.
219 See, e.g., Susan R. Eachus, Implementing Welfare Reform in Massachusetts and Washington
State: Bureaucracy and Ideology in Street-Level Policy 82 (2004) (unpublished Ph.D. dissertation,
University of Pennsylvania), available at http://repository.upenn.edu/dissertations/AAI3138004.
220 See, e.g., James W. Fossett et al., Federalism & Bioethics: States and Moral Pluralism, 37
HASTINGS CTR. REP., Nov.–Dec. 2007, at 24, 29.
1126
HARVARD LAW REVIEW
[Vol. 127:1077
In federalism parlance, states serve as “laboratories” of national partisan politics.221
Some might resist this characterization as oxymoronic. The very
notion of laboratories, the argument goes, inheres in organic local difference and grassroots problem-solving, and these features are absent
from state experimentation framed by national partisan struggle.222
But the laboratory metaphor always presupposes the national: what
makes the states laboratories is the hope that a successful experiment
will spread nationwide or that a dangerous one will not.223 Partisanship extends the metaphor’s national reference point back in time,
casting state actions as national actions in the present moment.224
States implement a variety of governmental visions that emerge from
national political contests but that cannot all be instantiated at the national level. In its starkest form, this is a laboratories account of the
Republican-Democratic contestation described in Part I: the Republican and Democratic positions on particular issues cannot both be implemented at the national level, and so states contesting national policy
on a particular issue are often serving simultaneously as competitors to
the federal government and as laboratories of national partisan politics. But attention to the formation of positions within the parties
themselves offers a richer account of states as laboratories. While still
hinging on national political struggle, it underscores that this struggle
is not an exclusively top-down, Washington-centric affair; in an era of
networked parties, a variety of actors — politicians, interest groups,
activists, consultants, and others — push competing partisan agendas
through state and national sites.225
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
221
222
See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
See, e.g., Ronald Brownstein & Stephanie Czekalinski, How Washington Ruined Governors, NAT’L J. (Apr. 11, 2013), http://www.nationaljournal.com/magazine/how-washington-ruined
-governors-20130411 (quoting former Arizona Governor Bruce Babbitt as arguing that “[t]he divergences in the laboratory-of-democracy idea ought to grow out of grassroots experience” (internal quotation marks omitted)).
223 See New State Ice Co., 285 U.S. at 311 (Brandeis, J., dissenting) (arguing that denying states
the right to experiment “may be fraught with serious consequences to the Nation” and that permitting such experimentation enables states to “try novel social and economic experiments without risk to the rest of the country”); Robert C. Post, Chief Justice William Howard Taft and the
Concept of Federalism, in FEDERALISM AND THE JUDICIAL MIND 53 (Harry N. Scheiber ed.,
1992) (suggesting that Justice Brandeis saw state experimentation as opening the possibility of
genuinely new social arrangements, while Chief Justice Taft saw state experimentation as a way
of showing dangers to the nation and forestalling widespread change).
224 Cf. Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98
COLUM. L. REV. 267 (1998) (advocating for subnational experimentation with regional and national coordination and oversight); Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 GEO. L.J. 53 (2011) (arguing that the federal government should afford broad discretion to local administrative units but assess their performance to
induce continuous learning and revision of standards).
225 See supra section I.A.1, pp. 1083–89 (discussing networked parties).
2014]
PARTISAN FEDERALISM
1127
States are critical laboratories for national party struggle because
they differ from both the federal government and each other in a variety of respects. Some relevant differences can be traced to ways in
which cultural and regional distinctiveness mediate partisanship.
Even today, the West Virginia Democratic Party is not the Massachusetts Democratic Party (even as it is not the West Virginia Republican
Party), nor is the New York Republican Party the Oklahoma Republican Party (even as it is not the New York Democratic Party).226 But a
host of more contingent phenomena are also important. Some states
have unified party government, while others have divided party government. Some state governors and legislators have ambition for national political office, while others do not. Variation that only tangentially relates to partisanship also influences the kinds of policies state
actors will embrace. A state’s population size and composition, its geography and natural resources, its professional or citizen legislature —
these and other characteristics all shape state decisionmaking even in a
time of nationalized politics.227 Especially insofar as state diversity reflects crosscutting forms of national diversity and contingent practical
differences, it is best understood as enlarging the scope of national action. States need not be organically distinct to experiment or to differ
from one another; national heterogeneity is reflected in state decisions.
States often serve as laboratories, for example, by giving concrete
form to a position that has a national partisan valence but is not embodied in federal policy. Sometimes a handful of states, or even a single state, define and promote a party’s stance on a particular issue.
California has advanced the Democratic position with respect to global
warming and emissions standards, while Arizona has been the
standard-bearer for the Republican Party on immigration.228 Other
times, a wide variety of states participate in developing the national
vision with respect to a particular issue. For many years now, the
Democratic and Republican positions on guns have been framed by
the states in the absence of federal action. Certain states require background checks, limit bulk purchases of firearms, ban assault weapons,
or regulate large-capacity magazines.229 Other states authorize school
employees to carry guns, require employers to allow guns in the workplace, or limit law enforcement discretion to deny concealed-carry
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
226
227
228
229
See, e.g., Shor & McCarty, supra note 28, at 537, 549.
See generally POLITICS IN THE AMERICAN STATES, supra note 19.
See supra Part I, pp. 1082–108.
See Brownstein & Czekalinski, supra note 222; 2011 Brady Campaign State Scorecard,
BRADY CAMPAIGN TO PREVENT GUN VIOLENCE, http://bradycampaign.org/sites/default/files
/2011%20Final%20state%20scoresA3-2%20Sheet1.pdf (last visited Nov. 24, 2013).
1128
HARVARD LAW REVIEW
[Vol. 127:1077
permits.230 The national partisan cleavage is clear, but it is principally
state, not federal, politicians who have shaped it. And while the main
divide is between the two parties, states governed by the same party
also differ in their substantive policies and the relative attention they
pay to gun-related issues.231
More generally, many issues that are branded “state” rather than
“national” questions — insofar as state governments rather than the
federal government are addressing them — are best understood as national experiments carried out within state fora. From fracking to instate tuition for undocumented immigrants; from charter schools to tax
rates; from public sector unions to takings for economic development — states serving as laboratories for these issues are participating
in national partisan struggle. Even as they undertake discrete actions,
state actors are motivated by partisan commitments that transcend
state borders. And their experiments are often adopted by other states
along partisan lines, as organizations like the Republican and Democratic Governors Associations and the American Legislative Exchange
Council cross-pollinate. As multiple states flesh out one party’s position, composite subnational action comes to define the national. States
generate a horizontal nationalism that is no less national for being
bottom-up rather than top-down.232
In time, moreover, such bottom-up partisan activity can force federal politicians’ hands or make it attractive for them to take a position
they once feared might amount to political suicide. State decisions
both fuel and reflect proposed lines of partisan division, and there is
slippage between state and federal politics, as state and federal actors
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
230 See Brownstein & Czekalinski, supra note 222; 2011 Brady Campaign State Scorecard, supra note 229.
231 See, e.g., Gun Laws, NRA-ILA, http://www.nraila.org/gun-laws.aspx (last visited Nov. 24,
2013) (select “Right To Carry Laws” in “Filter By Gun Laws” box) (showing, among other
intrapartisan differences, that Democratic Vermont allows individuals to carry concealed firearms
with no permit, while neighboring Democratic Massachusetts generally does not allow individuals
to carry concealed firearms, and that Republican Mississippi denies law enforcement discretion to
withhold concealed-carry licenses, while neighboring Republican Alabama grants law enforcement officers discretion as to the issuance of such permits). See generally State Legislation, NRAILA, http://www.nraila.org/legislation/state-legislation.aspx (last visited Nov. 24, 2013).
232 Cf. Judith Resnik et al., Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and
Translocal Organizations of Government Actors (TOGAs), 50 ARIZ. L. REV. 709, 726–28 (2008)
(recognizing states as a “collective national force,” id. at 728). In a narrower set of circumstances,
a particular state’s actions may effectively generate nationwide policy because of its market share.
When Texas adopts curriculum changes, for instance, its influence as one of the nation’s largest
textbook purchasers means that effects are felt across the country. Alexander Stille, Textbook
Publishers Learn: Avoid Messing with Texas, N.Y. TIMES, June 29, 2002, at A1; see Heather K.
Gerken & Ari Holtzblatt, The Political Safeguards of Horizontal Federalism 20 (unpublished
manuscript) (on file with the Harvard Law School Library).
2014]
PARTISAN FEDERALISM
1129
self-consciously treat states as testing grounds for national policies.233
Today, for instance, the national Democratic Party embraces same-sex
marriage, but only following a partisan contest in the states. As a
small and then growing number of blue states adopted marriage equality, same-sex marriage became a Democratic issue at the national level.
For some federal politicians, state politics forced the issue. For others,
state politics provided cover for a position they already favored. They
could cautiously advance the mantra of federalism, rather than support for same-sex marriage as such, and when it turned out their constituents supported same-sex marriage, move to a fuller-throated
endorsement of equality. As same-sex marriage has become a Democratic issue at the national level, moreover, additional blue states are
taking up the cause, shoring up the base of national support and, at
least for now, the national partisan valence.
Debates about the legalization of marijuana also have something of
this character. Recent ballot initiatives in Colorado and Washington
have legalized recreational marijuana under state law, a group of mostly blue states has decriminalized possession of small amounts of marijuana, still more states have decriminalized medicinal marijuana, and
a growing number of state Democratic parties and politicians now endorse legalization.234 Such state activity puts pressure on the national
Democratic Party to follow suit, or — more likely in the short term —
to adopt a modus vivendi approach to state legalization.235 As with
same-sex marriage, moreover, federalism gives national politicians who
favor legalization a lower-stakes way to advance this substantive posi–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
233 See, e.g., REPUBLICAN NAT’L COMM., supra note 22, at 4 (“It is time for Republicans on
the federal level to learn from successful Republicans on the state level.”); Brownstein &
Czekalinski, supra note 222 (quoting Kansas Governor Sam Brownback as saying, “My focus is to
create a red-state model that allows the Republican ticket [in 2016] to say, ‘See, we’ve got a different way, and it works’” (alteration in original) (internal quotation marks omitted)).
234 See, e.g., Erik Altieri, Iowa Democrats Add Medical Cannabis and Industrial Hemp to Party Platform, NORML (June 20, 2012), http://blog.norml.org/2012/06/20/iowa-democrats-party
-add-medical-cannabis-and-industrial-hemp-to-party-platform (noting that the Colorado, Washington, and Texas Democratic Parties have called for legalizing or decriminalizing marijuana);
Gavin Newsom, Time for California to Decriminalize, Tax & Regulate Marijuana, HUFFINGTON
POST (Apr. 22, 2013, 6:27 PM), http://www.huffingtonpost.com/gavin-newsom/time-for-california
-to-de_b_3134929.html; State Info, NORML, http://norml.org/states (last visited Nov. 24, 2013).
235 The Obama Administration recently released a guidance document recognizing state legalization efforts and suggesting that it will not devote resources to enforcing the federal prohibition
on marijuana beyond particular priorities, such as preventing the distribution of marijuana to
minors and fighting criminal gangs and cartels. See Memorandum from James M. Cole, Deputy
Att’y Gen., to All United States Attorneys (Aug. 29, 2013), available at http://www.justice.gov/iso
/opa/resources/3052013829132756857467.pdf. In other words, the memo casts state legalization as
a basis for limiting the enforcement of federal law. In part, this is simply a pragmatic recognition
that “the federal government has traditionally relied on states and local law enforcement agencies
to address marijuana activity through enforcement of their own narcotics laws.” Id. at 2. But it
is also a political recognition of state legalization as a decision meriting a degree of federal deference. See, e.g., id. at 3 (discussing legitimacy of state regulatory systems).
1130
HARVARD LAW REVIEW
[Vol. 127:1077
tion: calling for respect for state decisionmaking has a different ring
than calling for outright legalization.236 If popular support for legalization continues to grow, national politicians can transform arguments
for federalism into arguments about ending the United States’ war on
drugs, but they will not have committed to this position if popular
support wanes. Marijuana has an emerging, if still contested, national
partisan valence — but it is one that is being generated by state, not
national, action.
B. Identifying with Other States
The way in which states serve as pluralistic sites of national political contest raises an intriguing possibility: that state-based identification need not be limited to one’s own state of residence. While federalism scholarship often seeks state identification in exceptionalism, I
have argued that it is in some sense the unexceptional — the ways in
which the states and the federal government occupy the same political
space — that generates today’s state-based identification. By embodying different national partisan positions, the states become distinct
from the federal government and from each other, but they become
distinct in ways likely to resonate with individuals throughout the nation. No state has a homogenous population, in partisan terms or otherwise, and no state’s instantiation of the national will successfully
represents all of its residents. The fact that the states and the federal
government offer different answers to the same questions thus raises
the possibility that Americans may find in federalism multiple sites for
their national allegiance.
Start with the simplest case from Part II: individuals whose party
is out of power at the national level. If states are a key site of partisan
attachment for these people, as I have argued, our map is poorly
drawn. We speak of blue states and red states, but, as often quipped,
all of the states are purple.237 Even in those states that give “landslide” victories to Republican presidential nominees, a significant percentage of voters cast a ballot for the Democratic nominee, and vice
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
236 Cf. Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 413 (1999)
(suggesting that deterrence theory serves a discourse-management function by muting expressive
conflict).
237 See, e.g., SCHAPIRO, supra note 12, at 30 (“Federalism is not an answer to the problem of
how a blue nation and a red nation can inhabit the same country in peace. That problem does
not exist because a blue nation and a red nation do not exist.”). Contra Schapiro, I am suggesting
that federalism is an answer to this problem — not because blue states are perfectly blue and red
states are perfectly red, but instead because there are both blue and red states, and blue and red
people inhabiting each state, and people in any given state can look to multiple states as well as to
the federal government for representation.
2014]
PARTISAN FEDERALISM
1131
versa.238 California and Massachusetts may be deep blue states in
popular consciousness, but each gave almost forty percent of the vote
to Romney in 2012.239 Likewise, Texas and Kansas may strike us as
crimson, but more than a third of their votes went to Obama.240 Gubernatorial races, too, are often closely contested,241 and every state
legislature contains representatives from both parties.242 Throughout
the country, cities tend to be blue, while rural areas tend to be red.243
And on and on.244
Among other things, this means that a substantial minority of any
state’s population will not identify politically with the party in power
at the state level. While many residents may look to their own state as
a site of partisan affiliation and identity, for others, doing so will yield
little solace, and may even compound a sense of political alienation if
they find themselves in both the state and national minority.245 I have
suggested that the Democrat living in Massachusetts during the Bush
Presidency and the Republican living in Texas during the Obama Presidency have particular reason to identify with their states.246 But what
comfort is federalism for the Republican in Massachusetts and the
Democrat in Texas? While the Republican in Massachusetts during
the Bush Presidency and the Democrat in Texas during the Obama
Presidency enjoy one level of government controlled by their political
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
238 In the 2012 presidential election, for instance, the most lopsided state vote for Romney was
Utah’s seventy-three percent, compared to twenty-five percent for Obama. The most lopsided
state vote for Obama was Hawaii’s seventy-one percent, compared to twenty-eight percent for
Romney. Election 2012: President Results, N.Y. TIMES, http://elections.nytimes.com/2012/results
/president/big-board (last updated Nov. 29, 2012). Ninety-one percent of Washington, D.C.’s vote
went to Obama, id., one reason why D.C.’s quest for statehood is a nonstarter in a hyperpolarized
United States.
239 Id.
240 Id.
241 See, e.g., 2012 Governor Races, POLITICO, http://www.politico.com/2012-election/map/#
/Governor/2012 (last updated Nov. 29, 2012) (providing the election margins for gubernatorial
races in the 2012 elections); Election 2010: Governor Big Board, N.Y. TIMES, http://elections
.nytimes.com/2010/results/governor/big-board (last visited Nov. 24, 2013) (providing the election
margins for gubernatorial races in the 2010 elections).
242 Party Composition of State Legislatures, NAT’L CONF. ST. LEGISLATURES, http://www
.ncsl.org/legislatures-elections/elections/statevote-charts.aspx (last visited Nov. 24, 2013). Nebraska is an arguable exception, but only because it has an officially nonpartisan legislature. Id.
243 See, e.g., Josh Kron, Red State, Blue City: How the Urban-Rural Divide Is Splitting America, THE ATLANTIC (Nov. 30, 2012, 11:17 AM), http://www.theatlantic.com/politics/archive/2012
/11/red-state-blue-city-how-the-urban-rural-divide-is-splitting-america/265686.
244 See, e.g., FIORINA ET AL., supra note 172, at 57 (“California is a blue state, but most of the
state’s counties are red. Similarly, Texas is a red state, but there is considerable blue in its large
cities and along its border with Mexico.”).
245 See ANDERSON ET AL., supra note 176, at 138 (showing that electoral losers, especially
strong partisans, distrust their state government if their party is out of power).
246 See supra Part II, pp. 1108–22.
1132
HARVARD LAW REVIEW
[Vol. 127:1077
party and may ground their political identity more firmly in the nation
than the state,247 there is also the Democrat in Texas during the Bush
Presidency and the Republican in Massachusetts during the Obama
Presidency. What of them?
In one sense, this is a variation on the minority-within-a-minority
problem that recurs in all federations. But partisan federalism suggests a possible answer to this conundrum — those individuals may
affiliate with states they do not inhabit. The same forces that amplify
national partisan conflict and provoke political alienation provide multiple sites for political attachment. There are always some states controlled by the party out of power at the national level. And some
states are more deeply and consistently blue or red over time. As these
states wage national, partisan fights with the federal government, they
may become focal points not only for their own residents, but for individuals throughout the country. Democrats living in Texas during the
Bush Presidency could look to California’s fight with the federal government over greenhouse gases. Republicans living in Massachusetts
during the Obama Presidency could seize on Arizona’s fight with the
federal government over immigration.
I am positing, in short, a federalist variant of surrogate representation. As Jane Mansbridge has argued, many Americans are represented in Congress through a surrogate representative “with whom one has
no electoral relationship — that is, a representative in another district.”248 Surrogate representation is particularly important in the
United States, she suggests, because with single-member districts and
first-past-the-post, winner-take-all majority elections, many voters lose
in their own districts. Surrogate representation plays the “normatively
critical role of providing representation” to these voters.249 While voters who lose in their own districts could theoretically be bereft of rep–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
247 Cf. D. Conor Seyle & Matthew L. Newman, A House Divided? The Psychology of Red and
Blue America, 61 AM. PSYCHOLOGIST 571, 574–75 (2006) (noting that the Democratic or Republican majority in a state is likely to exaggerate its representativeness of the state’s population as a
whole, while members of the minority party may overestimate their minority status within the
state).
248 Mansbridge, supra note 9, at 522; see id. at 523 (“In the United States, surrogate representation — a noninstitutional, informal, and chance arrangement — is the preeminent form of nonterritorial representation.”); see also Robert Weissberg, Collective vs. Dyadic Representation in
Congress, 72 AM. POL. SCI. REV. 535, 535 (1978) (considering “collective representation” — “the
extent to which Congress as an institution represents the American people”). Surrogate representation is frequently invoked with respect to race, sex, and sexual orientation. See, e.g., CAROL M.
SWAIN, BLACK FACES, BLACK INTERESTS 217–19 (1993); Mansbridge, supra note 9, at 523.
But cf. Claudine Gay, Spirals of Trust? The Effect of Descriptive Representation on the Relationship Between Citizens and Their Government, 46 AM. J. POL. SCI. 717, 717 (2002) (finding that
black constituents place less significance on descriptive representation than do white constituents,
though they are more likely to contact black representatives). But the phenomenon extends to
partisanship as well.
249 Mansbridge, supra note 9, at 523.
2014]
PARTISAN FEDERALISM
1133
resentation in the federal legislature, the number of elected officials in
the national legislature, coupled with geographical clustering of interests and partisan affiliations, ensures that the losers in one district will
be represented by legislators from other districts.250 Because the Republican living in a Democratic district may feel better represented by
a Republican member of Congress than by her elected representative,
surrogate representation “focuses not on the dyadic relation between
representative and constituent but on the systemwide composition of
the legislature.”251
Federalism offers an even broader terrain for surrogate representation. The Democrat living in a Republican state, on this account, can
look not only to Democratic members of Congress, but also to states
that are governed by Democrats. As this framing suggests, surrogate
representation is likely to be more of a wholesale than retail phenomenon at the state level — partisans will look to the governments of other states rather than to particular legislators, as Mansbridge posits
with respect to Congress. But this composite type of representation
may be quite meaningful, particularly for individuals whose party is in
the minority at the national level.
One might object that the premise of representation is defeated by
this extension. Congress is a national lawmaking body that relies on
aggregated representation, so even if the Democratic Tennessean regards a senator from California as her surrogate representative, that
representative is part of the same body as the senators from Tennessee.
The Tennessean is simply shifting her focus of allegiance and interest
within a single decisionmaking body. When she turns to the state of
California, however, she is not finding representation; she might as
well be trumpeting French social policies or advocating for the British
National Health Service.
But this objection sells short the way states are key players in national politics. The Tennessean’s connection to California may be
much deeper than supposed because states regularly act not as separate polities but as platforms for national political struggle. States
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
250 Id.; see also Weissberg, supra note 248, at 536 (arguing that Americans will often be best
represented in Congress by someone with whom they have no direct electoral relationship, and
that one’s best representative may change across time and issue areas). Mansbridge offers the
following example: “A member of Congress from Minnesota . . . may lead the Congressional opposition to a war opposed by significant numbers of voters in Missouri and Ohio whose own representatives support the war.” Mansbridge, supra note 9, at 522.
251 Mansbridge, supra note 9, at 524–25; cf. SWAIN, supra note 248, at 219 (noting that “often
people who are Democratic party members are reluctant to request casework from a Republican
representative” and thus contact a Democratic representative from outside of their district for assistance); Adam B. Cox, Partisan Gerrymandering and Disaggregated Redistricting, 2004 SUP. CT.
REV. 409, 411–12 (suggesting that partisan gerrymandering’s harms occur at the level of Congress
as a whole and not at the level of individual state redistricting).
1134
HARVARD LAW REVIEW
[Vol. 127:1077
with Democratic governments take affirmative actions to further a national partisan agenda during a time of Republican federal governance. They push back against federal programs, enact competing policies, and establish new approaches that realign federal policy over
time.252 When states oppose national policy, they often provide a more
visible, affirmative version of the congressional minority’s statements
on the House or Senate floor. As a way of participating in national
politics, then, the Tennessean may choose to participate in another
state’s politics by donating money or otherwise becoming active in a
political campaign, as I will discuss in Part IV. Even if she does not
actively engage in these ways, she may enjoy the psychic comfort of
knowing that her team is in control somewhere.253 The fact of fifty
states means, moreover, that she may look to a variety of states. Because states governed by a single party advance national partisan
stances in different ways and attend to different issues, multiple states
may furnish surrogate representation. While she looks to California on
environmental questions, the Tennessean may simultaneously look to
Massachusetts on same-sex marriage and New York on gun control.254
She can identify with these other states not as separate polities but as
national political actors that speak for her.
As this suggests, it is not only the American whose party is out of
power who may seek out other states for surrogate representation.
Individuals whose states are controlled by their political party may
also affiliate with other states, and they may do so even when their political party is in power in Washington as well. Federalism’s fifty
states enable intraparty, not only interparty, differences to yield policy
variegation, and they create a platform for the national without Washington.255 Democrats across the country may take California’s environmental leadership to represent their views, while Republicans
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
252
253
See generally supra Part I, pp. 1082–108.
Cf. GREEN ET AL., supra note 6, at 206, 219–20 (analogizing parties to teams and stating
that partisans continue to root for their teams during the periods between elections).
254 As my repeated invocation of particular states suggests, not all fifty states are identical for
purposes of partisan affiliation. Some states are truer blue or deeper red than others. And some
have greater resources, larger populations, or bolder politicians. But the foregrounding of a few
states is not inconsistent with federalism. Cf. Levy, supra note 135, at 469 (“[I]t perhaps need not
be the case that all provinces in a successful federation can successfully command loyalty against
the center. . . . [A] few such provinces, or even one, might serve as an anchor of the whole system.”
(emphasis omitted)). The focus on particular states also underscores the degree of compatibility
between my account and those that treat states as distinct cultural enclaves or civil societies.
While many states are not distinctive in this way, states with certain types of cultural, ethnic, or
religious distinctiveness may be particularly powerful carriers of partisanship. That said, cultural
or other forms of identification may impede individuals’ partisan-based identification with other
states, making the fact of fifty states (rather than one red and one blue alternative) all the more
important.
255 See supra section III.A, pp. 1123–30.
2014]
PARTISAN FEDERALISM
1135
across the country may take Virginia’s ban on same-sex marriage and
civil unions to represent theirs. And individuals throughout the country may actively seek to mold the politics of other states, focusing on
states that have a stronger partisan lock on government or that prioritize issues differently. Democratic residents of blue states unlikely to
pass gun control measures may push for such legislation in New York.
Republican residents of red states that recognize union shops may
push for “right to work” policies in Wisconsin. When they seek to further partisan agendas across state lines, these individuals adopt other
states as microcosms of their national community. As federalism maps
out national partisan divisions, it encourages individuals to affiliate
beyond state borders.
IV. STATE ELECTIONS AND POLITICAL COMMUNITY
If the partisan dimension of contemporary federalism prompts individuals to affiliate with states in which they do not reside, what form
might that affiliation take? This Part surveys a few doctrines and
practices concerning cross-border engagement and considers how they
may be rationalized or called into question by the partisan aspect of
today’s federalism. Section IV.A considers Americans’ engagement in
electoral contests outside their states of residence, focusing on campaign finance. Section IV.B considers state freedom of information
acts that limit nonresident access to public records. With respect to
both questions, I suggest that porous, rather than impervious, borders
may facilitate states’ ability to serve as counterweights to the federal
government and as sites of political identification.
A. Bluman v. FEC: Political Engagement Across State Lines
In recent years, political engagement across state lines has increased dramatically. This engagement is not limited to out-of-state
spending for federal representatives,256 but also extends to state electoral contests and referenda.257 In the 2012 Wisconsin gubernatorial
recall election, for instance, out-of-state contributions made up a majority of Governor Scott Walker’s arsenal and nearly a third of challenger Tom Barrett’s funds.258 For South Dakota’s 2006 referendum
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
256
There is plenty of that, too. See, e.g., 2014 Overview: Top In-State vs. Out-of-State, CTR.
RESPONSIVE POL., http://www.opensecrets.org/overview/instvsout.php (last visited Nov.
24, 2013) (showing that many congressional candidates receive more funds from out-of-state
sources than in-state sources).
257 This conclusion is based on data for the fifty states spanning the last two decades that I
compiled from the National Institute on Money in State Politics. This data set is on file with the
Harvard Law School Library.
258 2012 Gubernatorial Recall: Compare Campaign Contributions to Committees, MILWAUKEEWISCONSIN J. SENTINEL, http://www.jsonline.com/watchdog/dataondemand/140931763.html
FOR
1136
HARVARD LAW REVIEW
[Vol. 127:1077
on abortion, a substantial majority of the funds for both sides came
from other states.259 As one commentator puts it: “Means of communication, fundraising and also campaigning are becoming national —
and it’s affecting state and even local races.”260
Cross-state engagement furnishes powerful evidence of partisan
federalism. For one thing, party organizations are among the most active cross-state participants; the Democratic and Republican Governors Associations have poured hundreds of millions of dollars into
state races in the past decade.261 Party actors recognize the power of
the states as platforms for national conflict. But so too do individuals,
who get involved directly in out-of-state politics for many reasons. In
some cases, a donor might contemplate moving to a different state to
take advantage of a new policy or visiting to benefit from the policy
during a briefer stay. In other cases, one state’s decisions may effectively set policy for the entire nation. But in perhaps the largest number of cases, Americans do not stand to benefit immediately or directly
from out-of-state political involvement. Instead, they seek to create
momentum for a particular policy or political party, to build a real-life
example to inform national debate, or simply to take comfort in knowing that their preferences are actual policy — and their partisan group
is in control — somewhere.262 By channeling money toward states
other than their own and embracing the kind of surrogate representa–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
(last updated July 7, 2012). The ensuing spate of 2012 gubernatorial races also involved considerable out-of-state spending. See, e.g., Paul Abowd & John Dunbar, North Carolina Governor’s
Race Awash in Out-of-State Funds, CTR. FOR PUB. INTEGRITY (Sept. 5, 2012, 10:53 AM),
http://w ww.publi cintegrity. org/ 2 0 12/ 09/ 0 5/ 1 07 93/n or th-car olin a-g ov er nor s -r ace-aw as h-out-s t ate
-funds; Andrew Garber, Tab for Governor’s Race: $46 Million, SEATTLE TIMES (Nov. 3, 2012,
6:01 PM), http://seattletimes.com/html/localnews/2019600162_money04m.html.
259 Patrick M. Garry et al., Raising the Question of Whether Out-of-State Political Contributions May Affect a Small State’s Political Autonomy: A Case Study of the South Dakota Voter
Referendum on Abortion, 55 S.D. L. REV. 35, 42 n.44 (2010) (showing that ninety percent of the
funds for opponents of the abortion ban and sixty-five percent for proponents came from out of
state). In every state they have been on the ballot, same-sex marriage questions have likewise attracted significant out-of-state money. For California’s Proposition 8, for instance, both proponents and opponents raised more than a quarter of their total money from out of state. Maloy
Moore, Proposition 8: Tracking the Money: Final Numbers, L.A. TIMES, http://www.latimes.com
/news/local/la-moneymap,0,2198220.htmlstory (last updated Feb. 3, 2009, 6:21 PM).
260 Big Donors Give Far and Wide, Influencing Out-of-State Races and Issues, NBC NEWS
INVESTIGATIONS (Oct. 8, 2012, 7:31 AM), http://openchannel.nbcnews.com/_news/2012/10/08
/14291297-big-donors-give-far-and-wide-influencing-out-of-state-races-and-issues (quoting Michael J. Malbin, Director of the Campaign Finance Institute) (internal quotation marks omitted).
261 Torres-Spelliscy, supra note 41, at 502–05.
262 See, e.g., Big Donors Give Far and Wide, Influencing Out-of-State Races and Issues, supra
note 260 (“Some Republicans, in say, California, will donate to help the Republican Party [in Iowa] because they feel it will go further than if they donate where they live in a more Democratic
state . . . .” (alteration in original) (quoting Megan Stiles, spokesperson for the Iowa Republican
Party) (internal quotation marks omitted)).
2014]
PARTISAN FEDERALISM
1137
tion I have explored in Part III, these individuals are enacting partisan
federalism.
If we see cross-state political participation, however, it is not because existing federalism doctrine or theory supports the practice. Instead, it is because such activity has been protected as expression under the First Amendment. Today, only Alaska and Hawaii impose any
limits on out-of-state contributions, and no state limits out-of-state expenditures.263 Although the Alaska Supreme Court upheld the state’s
residency-based limits, citing “deep suspicions of the motives and wisdom of those who, from outside its borders, wish to remold Alaska,”264
federal courts have rejected, on First Amendment grounds, attempts
by other states to impose similar restrictions.265 Courts have also
largely invalidated — as inconsistent with the First Amendment —
state requirements that petition circulators be state residents.266
While these courts have focused on the expressive dimensions of
cross-border contributions and expenditures and have not considered
their validity from a federalism perspective,267 a recent case raises the
question of whether such expressive activity undermines American
federalism and may accordingly be proscribed. In Bluman v. FEC,268
a three-judge panel of the D.C. District Court took up a loose end left
by the Supreme Court’s holding in Citizens United v. FEC269: “wheth–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
263 ALASKA STAT. § 15.13.072 (2012) (prohibiting candidates from receiving contributions from
out-of-state individuals exceeding specified amounts, and prohibiting political parties from raising
more than ten percent of contributions from out-of-state individuals); HAW. REV. STAT. ANN.
§ 11-362 (LexisNexis 2012) (providing that contributions from out-of-state individuals other than
candidates’ family members shall not exceed thirty percent of a candidate’s contributions). A
number of states limit public matching funds to in-district residents or voters. See, e.g., ARIZ.
REV. STAT. ANN. § 16-946 (2006); CONN. GEN. STAT. ANN. § 9-704 (West 2009); FLA. STAT.
§ 106.33 (2013); MICH. COMP. LAWS ANN. § 169.212 (West 2005).
264 State v. Alaska Civil Liberties Union, 978 P.2d 597, 617 (Alaska 1999).
265 See, e.g., Landell v. Sorrell, 382 F.3d 91, 146 (2d Cir. 2004) (striking down portion of Vermont law that would have limited out-of-state contributions to twenty-five percent of a candidate’s contributions), rev’d and remanded on other grounds sub nom. Randall v. Sorrell, 548 U.S.
230 (2006); VanNatta v. Keisling, 151 F.3d 1215, 1218 (9th Cir. 1998) (striking down Oregon constitutional amendment prohibiting state candidates from using out-of-district contributions).
266 The Supreme Court has not directly addressed the issue. In Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1998), the Court struck down — as inconsistent with the
First Amendment — a state requirement that petition circulators be registered voters, though it
suggested a residency requirement would be more narrowly tailored. See id. at 197. Several circuit courts have invalidated residency requirements for petition circulators on First Amendment
grounds. See Libertarian Party of Va. v. Judd, 718 F.3d 308, 319 (4th Cir. 2013); Yes on Term
Limits, Inc. v. Savage, 550 F.3d 1023, 1025 (10th Cir. 2008); Nader v. Blackwell, 545 F.3d 459, 475
(6th Cir. 2008); Nader v. Brewer, 531 F.3d 1028, 1038 (9th Cir. 2008); Krislov v. Rednour, 226 F.3d
851, 866 (7th Cir. 2000). But see Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 616–17
(8th Cir. 2001) (upholding North Dakota requirement that petition circulators be state residents).
267 The federalism angle has sometimes been pressed by litigants or the dissent. See, e.g.,
VanNatta, 151 F.3d at 1222–25 (Brunetti, J., dissenting).
268 800 F. Supp. 2d 281 (D.D.C. 2011), aff’d, 132 S. Ct. 1087 (2012) (mem.).
269 130 S. Ct. 876 (2010).
1138
HARVARD LAW REVIEW
[Vol. 127:1077
er the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.”270 In a decision summarily affirmed by the Supreme Court,271
the court upheld a provision of federal law that prohibits foreign nationals from making contributions or expenditures in connection with
federal, state, or local elections.272 The court reasoned that the case
did not turn on the First Amendment questions that have dominated
campaign finance jurisprudence but rather a “foundational question
about the definition of the American political community.”273 “It is
fundamental to the definition of our national political community,” the
court maintained, “that foreign citizens do not have a constitutional
right to participate in, and thus may be excluded from, activities of
democratic self-government.”274 Recognizing political contributions
and expenditures as integral to electoral processes, the court proceeded
to define them as both speech and participation in democratic selfgovernment.275 Accordingly, it reasoned, limitations on foreign contributions and expenditures are “all ‘part of the sovereign’s obligation to
preserve the basic conception of a political community.’”276
By moving from the speech-based logic of Citizens United and its
precursors to a speaker-based logic, Bluman has recast the question of
whether states may ban contributions and expenditures by nonresidents. After Bluman, it is no longer sufficient to define such activity
as speech; it is also necessary to define who is speaking and how the
speaker relates to the political community. Is it true, as an amicus
brief in an earlier case argued, that “from Oregon’s constitutional perspective, a citizen of Florida, Texas, or Vermont has no more of an interest or stake in . . . making campaign contributions in Oregon than
does a citizen of Montreal or Mexico City”?277 Or is it fundamentally
misguided to treat Americans from different states as foreigners to one
another?
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
270
271
272
273
274
Id. at 911; see also id. at 948 n.51 (Stevens, J., dissenting).
132 S. Ct. 1087.
2 U.S.C. § 441e(a) (2012).
Bluman, 800 F. Supp. 2d at 286.
Id. at 288. Looking to cases holding that foreign citizens may be denied certain rights and
privileges of United States citizens, such as voting, serving as jurors, or working as public school
teachers, the court discerned this test: “The government may exclude foreign citizens from activities ‘intimately related to the process of democratic self-government.’” Id. at 287 (quoting Bernal
v. Fainter, 467 U.S. 216, 220 (1984)).
275 Id. at 288; see also id. at 289 (“When an expressive act is directly targeted at influencing the
outcome of an election, it is both speech and participation in democratic self-government.”).
276 Id. at 288 (quoting Foley v. Connelie, 435 U.S. 291, 296 (1978) (internal quotation marks
omitted)).
277 Brief of the National Voting Rights Institute as Amicus Curiae Supporting the DefendantsAppellants at 18, VanNatta v. Keisling, 151 F.3d 1215 (9th Cir. 1998) (Nos. 95-35998, 95-35999).
2014]
PARTISAN FEDERALISM
1139
Bluman itself sends mixed signals on this question. In purely doctrinal terms, Bluman makes a strong case for limiting out-of-state financial participation. The opinion cites Gregory v. Ashcroft in support
of the proposition that the government may exclude foreigners “from
activities ‘intimately related to the process of democratic selfgovernment.’”278 Relying in part on the resident alien precedents subsequently cited in Bluman, Gregory maintained that state citizens must
be able to determine the qualifications of their government officials
free from federal interference in order “to preserve the basic conception of a political community.”279 Moreover, to the extent that Bluman
treats spending money as a form of participation in the process of
democratic self-government, Article IV Privileges and Immunities doctrine suggests that states might permissibly restrict nonresidents from
making contributions and expenditures.280 Although Privileges and
Immunities jurisprudence is a nationalist strand of federalism jurisprudence,281 the Court has long reserved to state residents the right to
vote and to hold elective office,282 justifying these restrictions as preserving the states as separate “political” communities283 and fostering
individuals’ “identification with a particular State.”284 If contributions
and expenditures are also forms of democratic participation that shore
up political community, this doctrine suggests they too might be activities reserved to state residents.
But if the doctrinal logic of Bluman casts cross-state political participation as a form of foreign participation that may be proscribed,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
278 Bluman, 800 F. Supp. 2d at 287 (quoting Bernal, 467 U.S. at 220) (citing Gregory v.
Ashcroft, 501 U.S. 452, 462 (1991)).
279 Gregory, 501 U.S. at 462 (quoting Sugarman v. Dougall, 413 U.S. 634, 647 (1973)) (internal
quotation marks omitted).
280 This point has not been lost on litigants seeking to defend the regulation of out-of-state contributions and expenditures. See, e.g., Brief in Opposition at 22–24, Am. Tradition P’ship v.
Bullock, 132 S. Ct. 2490 (2012) (No. 11-1179).
281 See, e.g., Paul v. Virginia, 75 U.S. 168, 180 (1868) (“It has been justly said that no provision
in the Constitution has tended so strongly to constitute the citizens of the United States one people
as [the Privileges and Immunities Clause].”).
282 See, e.g., Supreme Court v. Piper, 470 U.S. 274, 282 n.13 (1985); Baldwin v. Fish & Game
Comm’n, 436 U.S. 371, 383 (1978); Sugarman, 413 U.S. at 647; Dunn v. Blumstein, 405 U.S. 330,
343–44 (1972); see also Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 68–69 (1978).
283 E.g., Piper, 470 U.S. at 282 n.13; Sugarman, 413 U.S. at 647.
284 Baldwin, 436 U.S. at 383. The emphasis on state political communities as sites of individual identification finds an echo in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). See id.
at 823 n.32 (“[T]he voters of Arkansas, in adopting [a term-limits amendment], were acting as citizens of the State of Arkansas, and not as citizens of the National Government.”); id. at 838
(Kennedy, J., concurring) (discussing citizens’ discrete state and federal “political capacities”); id.
at 849 (Thomas, J., dissenting) (discussing state citizens’ “separate political identities”). Thornton
might offer doctrinal support for Americans’ participation across state lines with respect to federal elections, but not with respect to state elections. Cf. Oregon v. Mitchell, 400 U.S. 112, 117–18
(1970) (Black, J., announcing the judgments of the Court) (holding that Congress could fix voting
age for national, but not state, elections).
1140
HARVARD LAW REVIEW
[Vol. 127:1077
the opinion seems eager to head off just such claims. Responding to
the plaintiffs’ argument that contributions and expenditures are not
democratic participation akin to voting, as evidenced by the fact that
Americans do not vote but do make contributions and expenditures related to elections in states other than their own, the court insisted that
citizens of other states are “members of the American political community.”285 Given particular concerns about “foreign influence,” the
court further reasoned, “a law that is justified as applied to aliens may
not be justified as applied to citizens of the United States.”286 In so
framing the issue, the court appeared to reject the sort of federalism
argument made in litigation about out-of-state contributions and expenditures — namely, that if states are discrete political communities,
then out-of-state donors are exerting “foreign influence.” Even as its
reasoning points the way to restricting cross-state political participation in order to protect state political communities, Bluman suggests
that the relevant political community is the United States, not the fifty
states as such.
Bluman and existing doctrine ultimately point to two different approaches to cross-state political participation on federalism grounds:
either, on a strong federalist logic, states are meaningful political communities and cross-border activity may be proscribed to preserve them
as such, or, on a strong nationalist logic, cross-border activity must be
permitted because the United States is one national community.
We might instead eschew such dichotomous thinking and understand cross-border participation to be consistent with federalism insofar as political participation across state lines reflects and reaffirms the
states’ significance as governments and sites of political community.
Most narrowly, such participation allows individuals who feel alienated from their own state government to affiliate with another state government. More broadly, it underscores that states serve as opponents
of and counterbalances to the federal government for the nation at
large. In keeping with Bluman’s dicta, this understanding casts all
Americans as members of a national political community. Moving
beyond Bluman, it recognizes the states as discrete political communities — but ones that are, in critical respects, discrete national political
communities.
One might raise a variety of objections to this defense of crossborder participation. A critique internal to the argument I have offered might run as follows: for states to serve as political counterweights to the federal government and sites of individual partisan
identification, they must be meaningfully different from the federal
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
285
286
Bluman v. FEC, 800 F. Supp. 2d 281, 290 (D.D.C. 2011), aff’d, 132 S. Ct. 1087 (2012) (mem.).
Id.
2014]
PARTISAN FEDERALISM
1141
government, but if state elections are shaped by individuals across the
nation, we will not see significant divergence. To bolster partisan federalism, we should instead restrict political participation to state residents in order to distinguish the states from the federal government
and from one another.287
This objection has force. But, I submit, partisan federalism is more
consistent with cross-border participation than with its prohibition.
Given the restriction of the franchise to state residents and a population unevenly distributed across fifty states, cross-state engagement
will not eliminate partisan diversity across states and the federal government.288 Already today Americans participate in political contests
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
287 One can also imagine a pragmatic objection, emphasizing that restricting out-of-state contributions and expenditures could more generally tame campaign finance — and in particular, the
huge sums flowing from corporations, Super PACs, and extremely wealthy individuals. It is this
sort of logic that seemed to animate the federalism-based arguments for Montana’s Corrupt Practices Act, which was invalidated by the Supreme Court in American Tradition Partnership v.
Bullock, 132 S. Ct. 2490 (2012). See, e.g., Brief in Opposition, supra note 280; Brief for New York
et al. as Amici Curiae in Support of Respondents, Bullock, 132 S. Ct. 2490 (2012) (No. 11-1179).
But there are costs to framing the problem in terms of engagement by “foreign” out-of-state residents. The argument advanced in this Article does, however, align with the commitment of such
critics in other respects. Underscoring the importance of individuals’ identification with the polity, this argument embraces Bluman’s recognition of campaign spending as democratic participation — a recognition that supports equality, participation, and integrity values that the Supreme
Court has dismissed or defined in a crabbed way. See, e.g., Citizens United v. FEC, 130 S. Ct.
876 (2010) (articulating a narrow view of corruption as quid-pro-quo corruption); Buckley v.
Valeo, 424 U.S. 1, 48–49 (1976) (per curiam) (holding that “equalizing the relative ability of individuals and groups to influence the outcome of elections,” id. at 48, is not a constitutionally permissible purpose).
288 One might argue that the logic advanced here further requires allowing individuals
throughout the nation to vote in state elections. Similar proposals have been made in the local
government literature. See Richard Thompson Ford, The Boundaries of Race: Political Geography in Legal Analysis, 107 HARV. L. REV. 1841, 1909–10 (1994) (proposing opening local elections
to all members of a metropolitan region or state); Frug, supra note 143, at 329–30 (proposing a
plan “in which everyone gets five votes that they can cast in whatever local elections they feel affect their interest,” id. at 329, including elections outside their immediate region); see also Richard
Briffault, The Local Government Boundary Problem in Metropolitan Areas, 48 STAN. L. REV.
1115, 1156–62 (1996) (critiquing such proposals); Richard Thompson Ford, Beyond Borders: A
Partial Response to Richard Briffault, 48 STAN. L. REV. 1173 (1996) (responding to the critique).
While cross-state voting merits additional consideration, the argument here does not push that far.
This Article has suggested that individuals throughout the nation have a stake in other states’
politics and should have a means of influencing these politics and channeling their energies toward the states. But measures short of voting suffice for these purposes. Indeed, even as Bluman
blurs the line between voting and campaign contributions by casting both as forms of political
participation, it does not indicate that the two must be treated identically.
Jerry Frug’s proposal might also suggest that cross-border contributions and expenditures
should be permitted only within limits — for example, individuals might give in connection with
only a certain number of races. This would allow the alienated individual of section III.B to reaffirm her political identity and community while impeding any particular individual’s or organization’s effort to shape every state election. See supra note 287 (noting equality, integrity, and participation concerns). While this sort of proposal seems fanciful given the state of First
Amendment jurisprudence, it is intriguing from a federalism perspective.
1142
HARVARD LAW REVIEW
[Vol. 127:1077
beyond their states of residence, and the states do not mirror either the
federal government or one another. On the other side of the balance,
allowing people across the nation to contribute money and time to political contests in states other than their own enables them to affiliate
with these states.289 The law shapes as well as reflects our political
identities; because cross-border political participation is permitted under existing law, it is relatively easy for individuals to identify with
other states as they seek to influence those states’ politics.290 If the
law proscribed such engagement, Americans’ identification with other
states would likely decline accordingly. More broadly, recognizing the
legitimacy of cross-border participation underscores the role of the
states as significant political actors in our national polity. The very
fact that individuals from Texas seek to influence California politics,
and vice versa, indicates that the states are critical actors on the national stage. Cross-state political participation demonstrates states’
importance as sites of governance and identification, not their lack
thereof.
B. McBurney v. Young: State Freedom of Information Acts
The question of political participation across state lines concerns
whether Americans may seek to shape the government composition
and policies of states they do not inhabit. The flip side of this question
concerns what obligations states owe to residents of other states, the
classic province of Article IV Privileges and Immunities doctrine. Just
last Term, the Supreme Court rejected one possible obligation: to share
information about state governance with nonresidents and residents on
equal terms. In McBurney v. Young,291 residents of Rhode Island and
California challenged the citizens-only provision of Virginia’s Freedom
of Information Act (VFOIA), which limits access to public records to
Virginia citizens and media with circulation in the state.292 In a terse
opinion, the Court rejected both the Privileges and Immunities and
dormant Commerce Clause challenges to the law, including the argument that a right of access to public information should be considered
fundamental for purposes of the Privileges and Immunities Clause.293
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
289 Cf. WALZER, supra note 34, at 100 (“[P]eople who have given money and people who have
helped to get it are more loyal to the cause, or loyal longer, than those who merely have reason to
think that the cause is just.”).
290 Cf. Jonathan D. Varat, State “Citizenship” and Interstate Equality, 48 U. CHI. L. REV.
487, 518 (1981) (“Decreasing the significance of state residence tends to strengthen interstate
attachments . . . .”).
291 133 S. Ct. 1709 (2013).
292 Id. at 1713.
293 Id. at 1716–19. The Third Circuit had previously concluded that access to public records is
necessary to be able to “engage in the political process with regard to matters of national political
and economic importance.” Lee v. Minner, 458 F.3d 194, 198 (3d Cir. 2006) (quoting Lee v.
2014]
PARTISAN FEDERALISM
1143
Here I want to focus on one slice of the case — the Court’s supposition
that Virginia has a federalism-based interest in preventing, in the colorful formulation of Justice Scalia, “outlanders [from] mucking around
in . . . Virginia government.”294
Throughout the litigation, Virginia defended the citizens-only provision as a safeguard of political community.295 Shying away from an
economic defense of the law, the state insisted that the “purpose of the
law is political” and, as such, “its benefits are logically and properly
bestowed on those directly affected by [the state’s] political process —
i.e., citizens” and withheld from “noncitizens with no direct stake in
Virginia politics and governance.”296 As foreshadowed by questions
from the bench at oral argument,297 a unanimous Court accepted this
justification for the citizens-only provision, noting in its opinion that
the law “represents a mechanism by which those who ultimately hold
sovereign power (i.e., the citizens of the Commonwealth) may obtain
an accounting from the public officials to whom they delegate the exercise of that power.”298
Such claims about sovereign power and political community echo
the federalism arguments about out-of-state contributions and expenditures canvassed above.299 This is unsurprising: questions concerning
the flow of money into state politics and the flow of information out of
state government are two sides of the same coin. Both turn on the relationship of Americans to other states’ political sphere: for the former,
nonresidents seek to participate in state politics, while for the latter
they seek to learn about state politics. The symmetry of the two ques–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Minner, 369 F. Supp. 2d 527, 534 (D. Del. 2005)) (internal quotation marks omitted), abrogated by
McBurney, 133 S. Ct. 1709.
294 Transcript of Oral Argument at 21, McBurney, 133 S. Ct. 1709 (No. 12-17), available at
http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-17.pdf.
295 See, e.g., Brief of Respondents at 31, McBurney, 133 S. Ct. 1709 (No. 12-17).
296 Id. at 19. Virginia’s amici similarly argued that “[t]he relevant audience for State government consists of State citizens.” Brief of the National Conference of State Legislatures et al. as
Amici Curiae in Support of Respondents at 16, McBurney, 133 S. Ct. 1709 (No. 12-17); see also id.
at 4 (“The central purpose of Virginia’s open-records law is to enable Virginia citizens to observe
their government in operation and to hold their public officials accountable. This Court has
made clear that States may properly determine membership in their own political community.”).
297 See, e.g., Transcript of Oral Argument, supra note 294, at 8 (Scalia, J.) (“It seems to me entirely in accord with that purpose of these [sunshine] laws to say it’s only Virginia citizens
who . . . are concerned about the functioning of Virginia government, and ought to be able to get
whatever records Virginia agencies have.”); id. at 9 (Ginsburg, J.) (“Now, Virginia doesn’t allow
people from out of State to vote. They’re not part of Virginia’s political community. So . . . if
you’re not part of the political community, then you don’t fall under FOIA . . . .”); id. at 47–48
(Breyer, J.) (“[Y]ou say, well, but look, there must be something left that the States can reserve to
their own citizens. . . . This is just an interest in trying to find out how State institutions work,
and the voters have the main interest there . . . .”).
298 McBurney, 133 S. Ct. at 1716.
299 See supra section IV.A, pp. 1135–42.
1144
HARVARD LAW REVIEW
[Vol. 127:1077
tions suggests that we might think similarly about them in federalism
terms. If states may, after McBurney, exclude nonresidents from obtaining information about state government’s workings, the case is
bolstered for states to restrict “outlanders” from making contributions
and expenditures in connection with state elections. Both arguments
suggest that the United States is composed of discrete state political
communities and that nonresidents may be denied access to state records and political campaigns in order to recognize and preserve these
political communities. If anything, reserving information about state
government to residents seems more attenuated from maintaining a
state political community than does prohibiting out-of-state contributions and expenditures.300
As I have argued with respect to cross-border contributions and
expenditures, however, porous state borders are not inconsistent with
federalism. Nonresidents may have a “stake in Virginia politics and
governance”301 precisely insofar as they are Virginia’s politics and governance. Virginia, for example, helped lead the Republican charge
against the Affordable Care Act, and individuals throughout the country looked to the state for surrogate representation in this fight.302
While most VFOIA-disclosed information likely would not bear on
partisan conflicts, and certainly not on partisan conflicts of this magnitude, some of it would — and it is very hard if not impossible to draw
these lines ex ante.303 The fact that Mark McBurney, a Rhode Island
resident, was able to receive information pertaining specifically to his
child-support dispute with his ex-wife through other channels open to
nonresidents thus does not lessen the concern that he was unable to receive “any general policy information” from the state.304
To the extent that the federalist value of fostering political community is said to justify the citizens-only provision, partisan federalism
suggests this same value may cut in favor of more open state borders.
A VFOIA open to all Americans would — as with cross-border contributions and expenditures — recognize states as political communities,
but discrete national political communities. And allowing individuals
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
300 Cf. Lee v. Minner, 458 F.3d 194, 201 (3d Cir. 2006) (“[T]he State has offered no reason why
permitting noncitizens to access public information would diminish its ability to define its political
community. There is no evidence that allowing noncitizens to directly obtain information will
weaken the bond between the State of Delaware and its citizens.”), abrogated by McBurney, 133
S. Ct. 1709.
301 Brief of Respondents, supra note 295, at 19.
302 See generally supra notes 74–79 and accompanying text.
303 The fact that the Democratic and Republican Parties may, through local offices and liaisons,
make FOIA requests even in states with citizens-only provisions does not undercut this claim given that a variety of individuals and organizations not directly associated with the party apparatus
as such may have partisan interests in information. See generally section I.A.1, pp. 1083–89; Part
II, pp. 1108–22.
304 McBurney, 133 S. Ct. at 1714.
2014]
PARTISAN FEDERALISM
1145
throughout the country to “muck around” in Virginia government
could thus reaffirm the significance of states, highlighting their role as
a counterbalance and alternative to the federal government for all
Americans. In short, we should be skeptical of the claim recently accepted by the Court that “[t]he relevant audience for State government
consists of State citizens.”305
CONCLUSION
Partisanship is critical to understanding contemporary American
federalism. The states challenge the federal government, as doctrine
and scholarship assume they will, because some number of them are
governed by members of the political party out of power at the national level. Individuals identify with the states and not only the federal
government, as federalism theory suggests they must, because the
states represent different political parties and different partisan possibilities. Partisan federalism also sheds new light on doctrines and
practices, such as cross-state contributions and expenditures, that we
tend not to think of in federalism terms.
The account offered here is in critical respects a particular story
about federalism at the turn of the twenty-first century. Partisan federalism has emerged with the decline of dual federalism and the rise of
ideologically cohesive, polarized parties, and, because these phenomena are historically contingent, the story will no doubt change in the future. Yet aspects of the account have both deep roots and staying
power. Since Virginia and Kentucky’s opposition to the Alien and Sedition Acts, states have presented a vision of the national will different
from that offered by the federal government. As our partisan landscape continues to change, states will serve as discrete sites of national
governance and participate in nationwide controversies on behalf of
people both inside and outside their borders.
Partisan federalism not only helps to explain enduring features of
the relationship among the states, the federal government, and the
people, but also opens up new lines of inquiry. While I have suggested
that partisanship and federalism are mutually constitutive in the
United States today, my focus has been on how partisanship shapes
our federalism. Much more could be written about how federalism
shapes our partisanship, a question with both theoretical and doctrinal
import.306 Such an exploration might, for instance, lead to a new justi–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
305 Brief of the National Conference of State Legislatures et al. as Amici Curiae in Support of
Respondents, supra note 296, at 16; see also McBurney, 133 S. Ct. at 1716 (noting that the purpose
of VFOIA was to provide the “citizens of the Commonwealth” with a check on the “public officials to whom they delegate the exercise of [sovereign] power”).
306 For some initial thoughts, see section III.A, pp. 1123–30.
1146
HARVARD LAW REVIEW
[Vol. 127:1077
fication for, or critique of, the law regarding state regulation of political parties. Partisan federalism might also enrich our thinking about
local government law. We could consider, for example, how some cities, such as Atlanta, Austin, and Nashville, engage in partisan fights
with their states, while others, such as New York and San Francisco,
function as partisan actors on the national stage. As these and other
questions underscore, partisan federalism inspires a fresh look at federalism and partisanship alike.